CHAPTER Env-Dw 1400 PER AND POLYFLUOROALKYL SUBSTANCES (PFAS)
REMEDIATION LOAN FUND PROGRAM FOR CERTAIN PUBLIC WATER SYSTEMS
Statutory Authority:
RSA 485-H:9
PART Env-Dw 1401 PURPOSE; APPLICABILITY;
USE OF STANDARD TERMS
Env-Dw 1401.01 Purpose. The purpose of this chapter is to implement
RSA 485-H as to certain public water systems by establishing criteria and
procedures for administering the per and
polyfluoroalkyl substances (PFAS) remediation loan fund (PFAS RLF) program to
assist with the cost of complying with state maximum contaminant levels (MCLs)
for PFAS as established in RSA 485:16-e.
Source. #13164, eff 1-26-21
Env-Dw 1401.02 Applicability.
(a) This chapter shall apply to any community
water system or non-profit, non-transient public water system that applies for
financial assistance from the PFAS RLF.
(b) This chapter shall not apply to any publicly-owned and non-profit wastewater and wastewater residual
treatment or storage facilities, as that portion of RSA 485-H will be
implemented by Env-Wq 600.
Source. #13164, eff 1-26-21
Env-Dw 1401.03 Standard
Terms. Any terms used in this
chapter that are subject to Env-Dw 101.03 or that are
defined in Env-Dw 103 shall have the meaning
established therein unless otherwise specified herein.
Source. #13164, eff 1-26-21
PART Env-Dw 1402
CHAPTER-SPECIFIC DEFINITIONS
Env-Dw 1402.01 “Administrative
costs” means expenses associated with managing PFAS RLF projects. The term includes but is not limited to costs
for engineering and other consultants, environmental and technical reviews of
proposed projects, participation in state overview inspections, and accounting
and disbursement functions.
Source. #13164, eff 1-26-21
Env-Dw 1402.02 “Allonge” means an amendment to initial loan
documents in which the final project cost and repayment terms are established.
Source. #13164, eff 1-26-21
Env-Dw 1402.03 “Applicant” means an entity that files an eligibility
request or a final application, or both, for financial assistance from the PFAS
RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.04
“Application” means the written document(s), with attachments, through
which financial assistance is requested.
The term includes the eligibility request and the final application.
Env-Dw 1402.05 “Asset
maintenance and renewal plan” means a plan developed and implemented by a
recipient to maintain and eventually replace water system infrastructure funded
in whole or in part by the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.06
“Authorized representative” means an individual authorized by the
applicant to sign documents associated with applying for and receiving funds
from the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.07
“Community water system” means “community water system” as defined in
RSA 485:1-a, I, reprinted in Appendix B.
Source. #13164, eff 1-26-21
Env-Dw 1402.08
“Construction” means the erection, building, acquisition, alteration,
remodeling, improvement, or extension of any components of a water system.
Source. #13164, eff 1-26-21
Env-Dw 1402.09
“Construction costs” means the applicant’s total direct and incidental
costs of a construction project for which funding from the PFAS RLF is sought,
including acquiring land, acquiring services such as design, engineering, and
application preparation, acquiring materials and labor, and administrative
costs.
Source. #13164, eff 1-26-21
Env-Dw 1402.10
“Construction project” means a project intended to control, improve, or
develop a water system’s source of water or its infrastructure, including the
requisite planning, land acquisition, design, and construction.
Source. #13164, eff 1-26-21
Env-Dw 1402.11
“Contingent reimbursement” means reimbursement of loan principle if
funds become available as specified in RSA 485-H:6, and the term is separate
and distinct from “loan forgiveness” as defined in Env-Dw
1402.28.
Source. #13164, eff 1-26-21
Env-Dw 1402.12
“Department” means the department of environmental services.
Source. #13164, eff 1-26-21
Env-Dw 1402.13
“Disadvantaged affordability criteria” means the criteria by which it is
determined whether an eligible entity is eligible for loan forgiveness, as
established in Env-Dw 1405.02.
Source. #13164, eff 1-26-21
Env-Dw 1402.14
“Disbursement” means a transfer of funds from the PFAS RLF to a
recipient.
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Env-Dw 1402.15 “Eligible costs” means project costs that are
eligible for funding from the PFAS RLF, in accordance with RSA
485-H and this chapter.
Source. #13164, eff 1-26-21
Env-Dw 1402.16 “Eligible entity” means an entity that has been determined by the department in
accordance with this chapter to be eligible
for financial assistance under RSA 485-H.
Source. #13164, eff 1-26-21
Env-Dw 1402.17
“Engineering services” means consultations, investigations, reports, or other
services in any combination relating to the design or construction, or both, of
projects for which RSA 310-A requires a licensed professional engineer.
Source. #13164, eff 1-26-21
Env-Dw 1402.18
“Environmental review” means an analysis of the potential impact on the
human and natural environment of a project for which funding is sought from the
PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.19
“Excusable delay” means a delay that is beyond the recipient’s control
in beginning or completing the planning, design, construction, or
implementation of a project, such as a delay caused by an act of nature or war.
Source. #13164, eff 1-26-21
Env-Dw 1402.20 “Final
project cost” means the dollar amount of eligible project expenditures plus any
unpaid interest on the loan accrued during project planning, design, or
construction, or any combination thereof.
Source. #13164, eff 1-26-21
Env-Dw 1402.21
“Financial assistance” means funds provided from the PFAS RLF to pay, in
whole or in part, eligible costs for a project, in any of the formats allowed
by RSA 485-H:4 through RSA 485-H:6.
Source. #13164, eff 1-26-21
Env-Dw 1402.22
“Financial assistance agreement” means the contract between the state
and a recipient that establishes the rights and obligations of the state and
the recipient relative to financial assistance from the PFAS RLF. The term includes original loan agreements,
supplemental loan agreements, initial loan documents, and allonges.
Source. #13164, eff 1-26-21
Env-Dw
1402.23 “Governing body” means the group
of individuals that has the authority and responsibility to authorize the
applicant to enter into contracts and expend
funds. The term applies to governmental
entities as well as non-governmental entities.
Source. #13164, eff 1-26-21
Env-Dw
1402.24 “Governmental entity” means any
of the following that has responsibility for providing drinking water for
public consumption or otherwise funding a water system:
(a) Any state agency, board, or commission;
(b) Any political subdivision of the state, including
but not limited to a county, city, town, or district; and
(c) Any other public body created under state
law.
Source. #13164, eff 1-26-21
Env-Dw
1402.25 “Infrastructure” means all
structures and all mechanical and electrical equipment that connect a source of
water to end users in a water system or that provide source water protection,
including but not limited to all sources, treatment, storage, and distribution
facilities and the land necessary therefor.
Source. #13164, eff 1-26-21
Env-Dw 1402.26 “Initial
loan documents” means the initial financial assistance agreement between the
state and a non-governmental recipient through which the state agrees to
provide funds from the PFAS RLF to the recipient, and the recipient promises to
use the funds as specified in its application and to repay the funds to the
PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.27
“Initiation of operation” means a project that was funded in whole or in
part using funds from the PFAS RLF is placed into use for the purposes for
which it was intended.
Source. #13164, eff 1-26-21
Env-Dw 1402.28 “Land
acquisition” means the purchase of an interest in land that is needed to
complete an eligible project, whether in fee or by easement. The term includes associated professional
services such as appraisals, title searches, title opinions, and title
insurance.
Source. #13164, eff 1-26-21
Env-Dw 1402.29 “Loan forgiveness” means need-based forgiveness
of principle repayment pursuant to RSA 485-H:5, and the term is separate and
distinct from “contingent reimbursement” as defined in Env-Dw
1402.09.
Source. #13164, eff 1-26-21
Env-Dw 1402.30
“Maintenance” means actions taken to preserve the functional integrity
and efficiency of infrastructure. The
term includes preventive maintenance, corrective maintenance, and replacement
of equipment and other infrastructure components, including but not limited to
roofing, signs, and fences.
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Env-Dw 1402.31
“Materially or significantly affect project cost or estimated revenues”
means a change in estimated costs or revenues of more than 10%.
Source. #13164, eff 1-26-21
Env-Dw 1402.32
“Materially or significantly affect project design” means a change that
would:
(a) Alter the project’s performance standards;
(b) Alter the type of water treatment provided by
the project;
(c) Delay or accelerate the project schedule by
more than 10%; or
(d) Alter the design drawings and specifications,
or the location, size, capacity, or quality of any major part of the project,
such that amended plans and specifications are required under RSA 485:8 or the
applicable sections of Env-Dw 400.
Source. #13164, eff 1-26-21
Env-Dw
1402.33 “Non-profit entity” means an
entity that qualifies as non-profit organization under the U.S. internal
revenue code.
Source. #13164, eff 1-26-21
Env-Dw 1402.34
“Non-transient non-community water system” means “non-transient
non-community
water system as defined in RSA 485:1-a, XI, reprinted
in Appendix B.
Env-Dw 1402.35
“Operation” means control of the processes and equipment that make up
the water system. The term includes but
is not limited to financial and personnel management, record keeping,
laboratory control, process control, safety, and emergency operation planning.
Source. #13164, eff 1-26-21
Env-Dw 1402.36
“Operation and maintenance (O&M)” means the functions, duties, and
labor associated with the daily operations and normal repairs, replacement of
parts and structural components, and other activities needed to preserve an
asset so that it continues to serve its intended function, and the term
includes treatment media replacement and disposal.
Source. #13164, eff 1-26-21
Env-Dw 1402.37 “Original
loan agreement” means the initial financial assistance agreement between the
state and a governmental recipient through which the state agrees to provide
funds from the PFAS RLF to the recipient and the recipient promises to repay
the funds to the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.38 “Person” means “person” as defined in RSA
485:1-a, XIII, reprinted in Appendix B.
Source. #13164, eff 1-26-21
Env-Dw 1402.39 “PFAS RLF attorney” means the attorney(s)
under contract to the department for the purpose of providing:
(a) Legal review of
initial loan documents and allonges; and
(b) Other legal
services associated with providing financial assistance to non-governmental
entities.
Source. #13164, eff 1-26-21
Env-Dw 1402.40 “PFAS RLF financial advisor” means the
individual or entity under contract to the department for the purpose of
assessing the financial risk of providing financial assistance to
non-governmental entities.
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Env-Dw 1402.41
“Planning” means preparing and evaluating reports and studies of
alternative PFAS remediation solutions in order to
select the most cost-effective feasible option.
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Env-Dw 1402.42 “Pledge”
means the act or process through which a recipient commits, obligates, and
encumbers its real or personal property or its existing or anticipated revenues
to the state as security and means for repayment of the financial assistance
received by the recipient from the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.43 “Project” means the project proposed to be
completed with PFAS RLF funding, including the
planning, design, or construction, or any combination thereof, of any or all
aspects of the project that are necessary to comply with the MCLs for PFAS.
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Env-Dw 1402.44
“Recipient” means an applicant that receives financial assistance from
the PFAS RLF.
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Env-Dw 1402.45
“Repayment” means the payment of principal or interest, or both, on
funds received as a loan by a recipient from the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1402.46
“Replacement” means the installation of new or refurbished equipment,
accessories, or appurtenances for existing equipment, accessories, or
appurtenances that no longer perform as originally intended.
Env-Dw 1402.47 “Resident
project representative” means an individual who:
(a) Is qualified to the satisfaction of the
recipient, in consultation with the department, by reason of education and
experience to inspect construction projects; and
(b) Reports to a licensed professional engineer
when the project’s plan and scope of work indicate supervision by an engineer
is required.
Source. #13164, eff 1-26-21
Env-Dw 1402.48
“Responsible bidder” means an entity that:
(a) Has the technical knowledge necessary to
perform the contract;
(b) Has adequate financial resources to perform
the contract:
(c) Is able to comply with the legal and regulatory
requirements associated with the contract;
(d) Is able to deliver or otherwise perform
according to the contract schedule;
(e) Has either a history of satisfactory
performance or no history of unsatisfactory performance;
(f) Has a good reputation for integrity as
generally known in the industry or the community; and
(g) Has or can obtain necessary data, equipment,
and other resources to perform the contract.
Source. #13164, eff 1-26-21
Env-Dw 1402.49
“Scheduled completion date” means the date stated in the original loan
agreement or initial loan documents on which the construction project that
received PFAS RLF funds is intended to be placed into use for the purposes for
which it was intended.
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Env-Dw
1402.50 “Security” means real or
personal property or other collateral that is pledged by a non-governmental
recipient to ensure repayment of a loan to the state.
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Env-Dw 1402.51 “State” means the state of New Hampshire.
Source. #13164, eff 1-26-21
Env-Dw 1402.52
“Substantial completion” means that construction of the project, or a
discrete part thereof, is sufficiently completed that the project or discrete
part can be used for the purposes for which it is intended.
Source. #13164, eff 1-26-21
Env-Dw 1402.53
“Supplemental loan agreement” means an amendment to the original loan
agreement between the state and a governmental recipient that stipulates the
final project cost and applicable repayment terms.
Source. #13164, eff 1-26-21
Env-Dw 1402.54 “User charge”
means a charge levied on users of a water system for the user’s share of the
cost of water system operation and maintenance, plus any allocable portion of
capital improvements.
Source. #13164, eff 1-26-21
Env-Dw 1402.55 “Water
system” means a public water system as defined by RSA 485:1-a, XV, reprinted in
Appendix B.
Source. #13164, eff 1-26-21
PART Env-Dw 1403 ELIGIBILITY; ELIGIBILITY REQUEST REQUIREMENTS
Env-Dw 1403.01 Eligible
Projects and Costs.
(a) Community water systems and non-profit
non-transient non-community water systems whose testing of untreated source
water shows confirmed exceedance of the state MCLs for PFAS, as established in
RSA 485:16-e and as determined pursuant to Env-Dw
705.06, shall be eligible to apply for financial assistance from the PFAS RLF
for remediation efforts begun after September 30, 2019, as specified in RSA
485-H:3.
(b) The construction costs of a project shall be
determined as eligible if the applicant demonstrates that the criteria stated
in RSA 485-H:3, I, reprinted in Appendix C, are met.
(c) Costs of operation and maintenance (O&M)
shall be determined as eligible to the extent they are directly and solely
related to operating and maintaining infrastructure that was funded with PFAS
RLF funds or that would have been eligible for such funding if it had been
available and sought, regardless of when the infrastructure was constructed.
Source. #13164, eff 1-26-21
Env-Dw 1403.02 Additional
Eligibility Criteria for Construction Projects. In order to be
eligible for financial assistance from the PFAS RLF, construction projects also
shall:
(a) Comply with applicable federal requirements;
(b) Comply with applicable state design criteria
as specified in Env-Dw 400;
(c) For water supply treatment, be based on a
20-year life expectancy from the estimated date of initiation of operation; and
(d) For design capacity for intake or raw water
mains, be based on a 40-year life expectancy from the estimated date of
initiation of operation.
Source. #13164, eff 1-26-21
Env-Dw 1403.03 Additional
Eligibility Criteria for Costs of O&M.
RESERVED
Env-Dw 1403.04 Eligibility
Request Procedures for Construction Projects. Any entity meeting the eligibility requirements of Env-Dw 1403.01 and Env-Dw 1403.02
that wants to receive financial assistance from the PFAS RLF for a construction
project shall file an eligibility request by:
(a) Completing
an eligibility request as described in Env-Dw 1403.05;
(b) Signing and
certifying the eligibility request as described in Env-Dw
1403.06; and
(c) Submitting
the completed, signed eligibility request:
(1)
Electronically, per the instructions in the eligibility request form
that is available on the department’s website at www.des.nh.gov; or
(2) In writing,
by US Postal Service mail, private delivery service, or other in-hand delivery
to:
NHDES PFAS RLF Program
29 Hazen Drive
P.O. Box 95
Concord, NH 03302-0095
Source. #13164, eff 1-26-21
Env-Dw
1403.05 Eligibility Request
Information for Construction Projects.
(a) To be processed as provided in Env-Dw 1403.07(a), the applicant shall provide the following
information to the department on an “Eligibility Request” form, NHDES-W-03-257,
January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-257 or via the department’s web site at www.des.nh.gov, provided by the department:
(1) The water system’s name and the town or city
in which it is located;
(2) The water system’s PWS identifier;
(3) The name, title, email address, and daytime
telephone number of the applicant’s point of contact for the eligibility request;
(4) A short title for the project;
(5) A concise description of the proposed
project, for example “develop replacement water source” or “upgrade treatment
system” and of the need for the proposed project, together with a brief
description of the alternatives that have been considered and a demonstration
of how the eligibility requirements of RSA 485-H:3, I are
met;
(6) The amount of loan requested;
(7) The loan term requested, which shall be 5,
10, 15, or 20 years, except that a system serving a community that meets the
disadvantaged affordability criteria established in Env-Dw
1405.02 may request a 30-year term, provided the loan term shall not exceed the
design life of the improvement for which the loan is being requested; and
(8) If the applicant uses a paper-based
eligibility request, the name and title of the individual authorized by the
applicant to sign the eligibility request on behalf of the applicant.
(b) The applicant also shall provide to the
department as much of the following information as practicable and necessary to
support the demonstration of eligibility pursuant to (a)(5), above:
(1) For construction costs, an estimate of total
project costs, including materials and labor costs, a construction contingency,
and estimated planning and engineering costs, plus the amount and a description
of any other costs, which may include application preparation, and other
administrative costs, together with a statement of all assumptions made in
estimating the costs;
(2) The current residential water rate per single
family home per year;
(3) The median household income of the population
served, which may be based on:
a. The results
of an income survey done within the prior 3 years;
b. Data from
the American Community Survey, available at http://www.census.gov/acs; or
c. Data
available on the department’s website;
(4) The date the applicant received governing body
approval to borrow funds for the project or the date the applicant anticipates
receiving such approval;
(5) The anticipated date that the:
a. Design will
be started;
b. Construction
contract will be awarded; and
c. Project will
be completed; and
(6) The source of other funding contributing to
the project, if any, and for each source the amount and status of the funding.
Source. #13164, eff 1-26-21
Env-Dw
1403.06 Eligibility Request Signatures
and Certifications.
(a) The applicant shall sign and date the
eligibility request as follows:
(1) If the applicant uses a paper-based
eligibility request, the applicant’s authorized representative shall sign and
date the eligibility request and print his or her name and title in the
location indicated; and
(2) If the applicant uses the electronic
eligibility request, submitting the eligibility request shall constitute the
signature and the date the submission is received by the department shall
constitute the date of the eligibility request.
(b) Submission of the eligibility request,
whether electronically or on paper, shall constitute certification by the
applicant that:
(1) The information provided is true, not
misleading, and as complete as practicable, to the best knowledge and belief of
the applicant;
(2) The applicant understands that any department
determination that the applicant and the applicant’s project qualifies
for funding from the PFAS RLF that is based on false, incomplete, or misleading
information is subject to modification, up to and including reversal, through
an adjudicative proceeding conducted in accordance with applicable provisions
of Env-C 200; and
(3) The signer is subject to the penalties
specified in New Hampshire law for falsification in official matters, currently
RSA 641.
(c) If the applicant’s authorized representative
is, or is acting on behalf of, a listed engineer as defined in Env-C 502.10,
the signature also shall constitute certification that the signer understands
that the submittal of false or misleading information constitutes grounds for
debarring the listed engineer from the roster.
Source. #13164, eff 1-26-21
Env-Dw 1403.07 Department
Processing of Eligibility Requests for Construction Projects.
(a) The department shall consider each
eligibility request in the order in which the eligibility requests were
submitted if:
(1) The eligibility request contains sufficient
information for the department to determine the identity of the applicant and
the applicant’s point of contact, the nature and scope of the proposed project,
and the term and amount of funding likely to be needed;
(2) The applicant is an eligible entity; and
(3) The proposed project meets the criteria
specified in Env-Dw 1403.01 and Env-Dw 1403.02.
(b) If the applicant’s eligibility request meets
the criteria in (a), above, the department shall provide written instructions
for filing a final application as described in Env-Dw
1404.01, including the applicant’s and department’s agreed-to deadline for
filing the final application.
(c) If the department determines that the
applicant’s eligibility request does not meet the criteria in (a), above, the
department shall notify the applicant of the reason(s) why in writing within 14
days of making the determination.
(d) In response to being notified that an
eligibility request does not meet the criteria in (a), above, an applicant that
is an eligible entity may modify or supplement any information and submit a new
eligibility request to the department.
Source. #13164, eff 1-26-21
Env-Dw 1403.08 Eligibility
Request Procedures for Costs of O&M.
Reserved
Env-Dw 1403.09 Eligibility
Request Information for Costs of O&M.
Reserved
Env-Dw 1403.10 Department Processing of Eligibility
Requests for Costs of O&M.
Reserved
PART Env-Dw 1404 PROCEDURES FOR RECEIPT OF PFAS REMEDIATION
LOAN FUNDS
Env-Dw
1404.01 Final Application Requirements
and Procedures for Construction Projects.
(a) An applicant whose construction project is
determined by the department to meet the criteria in Env-Dw
1403who wishes to obtain funding shall submit a “Final Loan Application”,
NHDES-W-03-258, January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-258 or via the department’s web site at www.des.nh.gov, to the department, with the following:
(1) The information required for a final
application specified in Env-Dw 1404.03;
(2) Confirmation of the applicant’s authority to
borrow as specified in Env-Dw 1404.04;
(3)
Information regarding the environmental review required by Env-Dw 1406, as specified in Env-Dw 1404.05;
(4) The bank information specified in Env-Dw 1404.06;
(5) A planning document as specified in Env-Dw 1404.07; and
(6) Verification of a revenue program as
specified in Env-Dw 1404.08.
(b) The department shall suspend
further action on the application if any of the following
are true:
(1) The project is found to be
ineligible;
(2) The applicant informs the department in writing that it does not intend to pursue financial assistance from the PFAS
RLF;
(3) The applicant
does not submit a final application by the agreed-to deadline stated in the
instructions sent pursuant to Env-Dw 1403.06(b); or
(4) Insufficient
funds remain in the PFAS RLF account to execute the loan.
(c) The department shall notify the applicant in
writing if processing is suspended under (b)(1), (b)(3), or (b)(4), above.
Source. #13164, eff 1-26-21
Env-Dw
1404.02 Conditions Arising from
Application; No Impact on
Other Authority.
(a) By applying for financial assistance, the
applicant agrees to the following:
(1) From the time of first application for
financial assistance for a project throughout all stages of construction and
implementation, and at any other time while any assistance from the PFAS RLF to
the applicant is outstanding, the recipient shall allow the department to
inspect, as provided in Env-Dw 1407.09(a) and Env-Dw 1407.14:
a. The project
site
and any and all incidental works, areas,
facilities, and premises otherwise pertaining to the project for which
application is made; and
b. Any and all books, accounts, records, contracts or other
instruments, documents, and other information possessed by the recipient or its
contractors, agents, employees or representatives which relate in any respect
to the receipt, deposit, or expenditure of financial assistance funds; and
(2) After project completion, the recipient shall
allow the department to conduct periodic site visits to confirm that the
project is functioning as intended.
(b)
Nothing in these rules shall prevent the department from exercising any
inspection or other regulatory authority relative to the applicant’s project or
other regulated facilities conferred on the department by any provision of law.
Source. #13164, eff 1-26-21
Env-Dw 1404.03 Information
Required for Final Application for Construction Costs. The applicant shall provide the following
information for a request for funding for a construction project:
(a) The water system’s name and PWS identifier;
(b) Whether the applicant is a governmental or
non-governmental eligible entity;
(c) The water system’s mailing address, including
street name and number or post office box number, city or town, and zip code
including 4-digit extension;
(d) The name, title, email address, and daytime
telephone number including area code of the applicant’s contact for:
(1) Questions regarding the final application;
and
(2) Repayment billing;
(e) A short title for the project;
(f) The primary location where the work will be done;
(g) A concise explanation of the need for the proposed
project, including how it will address public health protection, and what
alternatives have been considered;
(h) An estimate of the following project costs:
(1) Estimated construction costs;
(2) A construction contingency of 10%;
(3) Estimated planning and engineering costs,
which may include application preparation costs;
(4) The amount and a description of any other costs
that are necessary for the project to achieve compliance with the PFAS MCLs;
and
(5) The total estimated costs;
(i) The amount of the
loan being requested;
(j) The term requested, which shall be 5, 10, 15,
or 20 years, except that a system serving a community that meets the
disadvantaged affordability criteria established in Env-Dw
1405.02 may request a 30-year term, provided the loan term shall not exceed the
design life of the improvement for which the loan is being requested;
(k) The current residential water rate per single
family home per year;
(l)
The tentative project schedule, including:
(1) The actual or anticipated date the applicant
was or will be authorized by its governing body to borrow funds for the project;
(2) The actual or anticipated date the design was
or will be started;
(3) The anticipated date the construction
contract will be awarded; and
(4) The anticipated date the project will be completed;
(m) A state vendor code number obtained pursuant to the vendor code
requirements established by the New Hampshire department of administrative
services, currently Adm 603;
(n) The name and title of the individual
authorized by the applicant to sign the application on behalf of the applicant;
(o) For governmental applicants, a letter signed
by an authorized representative stating whether or not the applicant has any
debt outside the NH Municipal Bond Bank and, if the debt is rated, the rating;
(p) For non-governmental applicants,
documentation of the extent of the applicant’s existing debt; and
(q) A copy of the applicant’s latest annual
report or financial statements.
Source. #13164, eff 1-26-21
Env-Dw
1404.04 Applicant’s Authority to
Borrow.
(a) For a governmental applicant, the
confirmation required by Env-Dw 1404.01(a)(2) shall
consist of a completed “Authority to Borrow - Public Entities”, NHDES-W-03-259,
January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-259 or via the departments’ web site at www.nh.gov, which shall constitute proof that the applicant’s
governing body passed or approved a valid warrant article or resolution, as
applicable, that:
(1) Authorizes the applicant to:
a. Raise,
appropriate, and spend the amount of funds to be requested for the identified project;
b. Apply for
funding for the identified project; and
c. Enter into a
binding contract to repay all funds that are received as a loan;
(2) Designates an individual, by title and name,
to be the applicant’s authorized representative for purposes of:
a. Signing and
filing the application and furnishing such information, data, and documents
pertaining to the application as may be required; and
b. If financial
assistance is awarded, furnishing such information, data, and documents
pertaining to disbursements of the funds;
(3) Identifies, by name and title, each
individual who is authorized to sign the original loan agreement and
supplemental loan agreement should funds be awarded;
(4) Binds the applicant to operate and maintain
all facilities constructed or modified with the funds received in accordance
with all applicable requirements; and
(5) Is signed and certified as provided in
Env-Dw 1404.09.
(b) For a non-governmental applicant, the
confirmation required by Env-Dw 1404.01(a)(2) shall
consist of a completed “Authority to Borrow”, NHDES-W-03-260, January 2021, available
at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-260 or via the department’s web site at www.des.nh.gov, which shall constitute proof that the applicant’s
governing body passed a valid resolution that:
(1) Authorizes the applicant to:
a. Apply for
funding from the PFAS RLF for the identified project;
b. Enter into a binding contract to repay all funds that are
received as a loan; and
c. Pledge
security to the state to ensure such repayment;
(2) Designates an individual, by title and name, to
be the applicant’s authorized representative for purposes of:
a. Signing and
filing the application and furnishing such information, data, and documents
pertaining to the application as required; and
b. If financial
assistance is awarded, furnishing such information, data, and documents
pertaining to disbursements of the funds;
(3) Includes any other approval actions that may
be required to authorize borrowing of funds;
(4) Identifies, by name and title, each
individual who is authorized to sign the initial loan document, allonge, and
such promissory notes and security instruments as are required to complete the
pledge of security should funds be awarded;
(5) Binds the applicant to operate and maintain
all facilities constructed or modified with the funds received in accordance
with all applicable requirements; and
(6)
Is signed and certified as provided in Env-Dw
1404.09.
(c) A non-governmental applicant shall submit
with the proof required by (b), above, copies of:
(1) The applicant’s bylaws or articles of
incorporation, or both, as applicable; and
(2) The approved minutes of the meeting at which
the resolution was approved.
(d) The proof required by (a) or (b), above,
shall be in a written document that is certified and sealed by:
(1) The town clerk or equivalent for a
governmental entity; or
(2) The board secretary or comparable official
for a non-governmental entity.
Source. #13164, eff 1-26-21
Env-Dw 1404.05 Report
of Environmental Review. The
applicant shall provide the following information on the “Environmental Review”
form, NHDES-W-03-261, January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-261 or via the department’s web site at www.des.nh.gov:
(a) The water system’s name, mailing address, and
PWS identifier;
(b) The short title for the project;
(c) An introductory paragraph that reads as
follows, with the water system’s name filled in:
“The [PWS Name] has
applied for funds through the State of New Hampshire Department of
Environmental Services PFAS Remediation Loan Fund (PFAS RLF), in accordance
with NH Code Admin. Rules Env-Dw 1400. This document fulfills the requirements of
Env-Dw 1404.01(a)(3) relative to providing
information on the environmental review required by Env-Dw
1406.”
(d) An overview of the applicant’s water system
and its customers, including the system’s source(s), capacity, number of
service connections, and approximate population served;
(e) An explanation of the need and justification
for the proposed project;
(f) A description of the scope of the proposed
project, including estimated costs;
(g) A list of each document that is available for
public review that supplements the information provided pursuant to (d)-(f), above;
(h) A summary of potential environmental impacts
arising from the proposed project relative to air emissions, noise, surface
water, groundwater, wetlands, wildlife, and habitat;
(i) A summary of
potential impacts on the community in terms of social and economic aspects,
recreation, historic sites, and indirect impacts;
(j) The date the applicant’s governing body
authorized funding for the project or is expected to authorize such funding;
(k) A statement that the applicant agrees to
publish a public notice to initiate a 30-day comment period on the report; and
(l)
An 8.5-inch by 11-inch copy of a topographic map at a scale that clearly
identifies the location of the project and maximum extent of disturbance.
Source. #13164, eff 1-26-21
Env-Dw 1404.06 Bank
Information. The bank information
required by Env-Dw 1404.01(a)(4) shall be as follows:
(a) The
name of the recipient;
(b) The department-assigned project number;
(c) The name, title, daytime telephone and fax
numbers including area code, and email address of the individual who will be
the contact for billing and notifications of fund transfers;
(d) The name, title, daytime telephone and fax
numbers including area code, and email address of the individual who will be
the contact for audits;
(e) The name, mailing address, and main telephone
number including area code of the recipient’s financial institution;
(f) The name, title, daytime telephone and fax
numbers including area code, and email address of the recipient’s point of
contact at the financial institution;
(g) The recipient’s financial institution’s ABA
routing number for ACH transactions;
(h) The name on the account and the type of
account, for example checking or savings; and
(i) The account number.
Source. #13164, eff 1-26-21
Env-Dw 1404.07 Planning
Document. The planning document
required by Env-Dw 1404.01(a)(5) shall facilitate
review of the proposed project and alternatives thereto from the viewpoints of
function, operation, economics, reliability, safety, efficiency,
cost-effectiveness, and environmental compatibility, by providing the
following:
(a) Identification of the planning area
boundaries and characteristics and the existing needs related to the water system;
(b) A cost-benefit analysis of feasible water
systems or conveyance alternatives capable of meeting state and federal
requirements, which details all monetary costs including the present worth or
equivalent annual value of all capital costs and operation;
(c) All information necessary for the design of
the proposed project and alternatives;
(d) The most current estimate of project cost
itemized as to major facilities or items including land and easement costs,
fees for engineering services, fees for legal services, fees for financial
services, contingencies, and interest during construction; and
(e) A statement that the applicant has a program
in place for funding the maintenance and eventual replacement of the funded
asset, or, if there is no such program in place, a plan for developing an asset
maintenance and renewal plan as part of the funded construction project.
Source. #13164, eff 1-26-21
Env-Dw 1404.08 Establishment
and Verification of Revenue Program.
(a) The applicant shall establish:
(1) A schedule of user charges that is designed
to generate sufficient revenues to cover operation and maintenance expenses as
well as any allocable portion of capital improvements; and
(2) A dedicated source or sources of revenue to
repay the loan.
(b) For purposes of (a)(2), above, a revenue
source shall be considered dedicated when the recipient passes or adopts an
ordinance or other binding resolution committing the source of funds for
repayment to the PFAS RLF.
(c) The applicant’s ordinance or other binding
resolution dedicating a source of funding for repayment of the loan shall be in
effect and binding on the applicant prior to the loan agreement taking effect.
(d) For an applicant that is a governmental
entity, the verification required by Env-Dw
1404.01(a)(6) shall be made using “Financial Certification - Publicly-Owned
Systems”, NHDES-W-03-262, January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-262 or via the department’s web site at www.des.nh.gov, by:
(1) Certifying that the applicant has the
financial capability to support both the project loan repayment and continuing
operation and maintenance of its water system;
(2) Identifying the source of repayment;
(3) Affirming that the applicant will conduct and
report on a financial audit, including compliance and controls, in any calendar
year it receives PFAS RLF funds in excess of $500,000;
and
(4) Stating whether or not
the applicant has existing debt outside the New Hampshire municipal bond bank
and, if so, the amount of the debt and whether the debt is rated and, if the
debt is rated, the rating; and
(5)
Signing and certifying the certification as provided in Env-Dw 1404.09.
(e) For an applicant that is a non-governmental
entity, the verification required by Env-Dw
1404.01(a)(6) shall be made using “Financial Certification - Privately-Owned
Systems”, NHDES-W-03-263, January 2021, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-263 or via the department’s web site at www.des.nh.gov, by:
(1) Identifying the source of repayment;
(2) Certifying that the applicant:
a. Has the
financial capability to support both the project loan repayment and continuing
operation and maintenance of its water system; and
b. Will conduct
and report on a financial audit, including compliance and controls, in any
calendar year it receives PFAS RLF funds in excess of
$500,000; and
(3) Signing and certifying the certification as
provided in Env-Dw 1404.09.
Source. #13164, eff 1-26-21
Env-Dw 1404.09 Signatures
and Certifications for Final Applications and Associated Documents.
(a) The applicant’s authorized representative
shall sign and date the final application as follows:
(1) If the applicant uses a paper-based
application, the authorized representative shall sign and date the application
and print his or her name and title in the location indicated; and
(2) If the applicant uses the web-based
application, submitting the form shall constitute the signature and the date
the submission is received by the department shall constitute the date of the
application.
(b) Submission of the application, whether
electronically or on paper, shall constitute certification by the signer that:
(1) The signer has been duly authorized by the
applicant to sign the application;
(2) The information provided is true, complete,
and not misleading to the knowledge and belief of the signer;
(3) The applicant understands that any department
determination that the applicant and the applicant’s project qualifies
for funding from the PFAS RLF that is based on false, incomplete, or misleading
information is subject to modification, up to and including reversal, through
an adjudicative proceeding conducted in accordance with applicable provisions
of Env-C 200; and
(4) The applicant and the signer are subject to
the penalties specified in New Hampshire law for falsification in official
matters, currently RSA 641.
(c) If the applicant’s authorized representative
is, or is acting on behalf of, a listed engineer as defined in Env-C 502.10,
the signature also shall constitute certification that the signer understands
that the submittal of false or misleading information constitutes grounds for
debarring the listed engineer from the roster.
Source. #13164, eff 1-26-21
Env-Dw 1404.10 Final Application Processing for
Construction Projects.
(a) The department shall determine that the
application is complete and all or a portion of the proposed project is
eligible for financial assistance from the PFAS RLF if:
(1) All or a portion of the proposed project is
within the scope of eligible projects identified in Env-Dw
1403;
(2) The applicant has submitted all information
and documents required by Env-Dw 1404.01; and
(3) The applicant has signed the application as
required by Env-Dw 1404.09.
(b) The department shall notify the applicant in
writing of its eligibility determination.
(c) If the department determines that the
applicant’s project is not eligible, the notice sent pursuant to (b), above,
shall specify the reason(s) for the determination and inform the applicant that
the department will reconsider the determination if the applicant submits
modified or supplemental information.
(d) If the applicant wants the department to
reconsider its determination that a project is ineligible, the applicant shall
submit modified or supplemental information within 30 days of the date of the
notice and request the department to reconsider its decision in
light of the new information.
(e) Upon receipt of a request to reconsider in light of new information, the department shall review the
information and make a decision in accordance with (a) through (c), above,
except that no further reconsideration shall occur.
Source. #13164, eff 1-26-21
Env-Dw 1404.11 Final
Application Requirements and Procedures for Costs of O&M. Reserved
Env-Dw 1404.12 Information Required for Final Application
for Costs of O&M. Reserved
Env-Dw 1404.13 Final Application Processing for Costs of
O&M. Reserved
PART Env-Dw 1405 FINANCIAL
ASSISTANCE; PAYMENTS; ACCOUNTING
Env-Dw 1405.01 Types
of Assistance and Related Conditions.
(a) Financial assistance awarded
by the department shall be one
of
the following:
(1) A loan;
(2) A combination of a loan and loan forgiveness;
(3) A combination
of a loan and contingent reimbursement; or
(4) A combination
of a loan, loan forgiveness, and contingent reimbursement.
(b) Loans awarded
by the department shall be made only
with the following conditions:
(1) A loan shall have a term not to exceed the
maximum number of years specified in the final application;
(2) Principal and interest payments shall
commence within:
a. One year of
substantial project completion for construction projects; or
b. One year of
loan closing for costs of O&M;
(3) The recipient shall establish a dedicated
source of revenue for repayment of the loan in accordance with Env-Dw 1404.08;
(4) The recipient has completed all necessary
documentation and agreements required by the department to issue a loan; and
(5) The loan has been approved by the governor
and executive council (G&C).
Source. #13164, eff 1-26-21
Env-Dw 1405.02 Loan
Forgiveness & Contingent Reimbursement.
(a) The department
shall forgive 10 percent of the loan principal to eligible entities that meet
the following disadvantaged affordability criteria:
(1) The water system serves residents whose
median household income (MHI) is less than the statewide MHI based on the most
recent census data or income survey;
(2) The water system has a water rate that
exceeds 0.8% of the MHI of the system; and
(3) At least 50% of the residential units served
by the water system must be occupied at least 6 months of the year by a
population whose MHI is less than the statewide MHI based on the most recent
census data or income survey.
(b)
Community water systems owned by a county shall be eligible for loan
forgiveness if the county MHI is below the statewide MHI.
(c) Loan forgiveness
shall be applied:
(1) At the first repayment for governmental
entities; and
(2) At each monthly repayment throughout the term
of the loan for non-governmental entities.
(d) Total loan
forgiveness under this section shall not exceed the amount specified in RSA
485-H:5, III for both drinking water pursuant to this chapter and clean water
pursuant to Env-Wq 600 combined.
(e) Contingent on availability
of funds as specified in RSA 485-H:6, the department shall reimburse up to 50
percent of the loan principal to all loan recipients as specified in RSA
485-H:6, II, as follows:
(1) If
insufficient funds are received by the state to cover 50 percent of the
principal, the reimbursement shall be prorated;
(2) In no
instance shall the loan reimbursement exceed 50 percent of the total loan
amount, unless the recipient received loan forgiveness under RSA 485-H:5, in
which case the combined maximum shall be 60 percent; and
(3) In the
event a loan recipient receives compensation from a responsible party, the
department shall not grant partial loan forgiveness that in combination with
any compensation would exceed 100 percent of the total cost of the remediation.
(f) For both
governmental and non-governmental entities, contingent reimbursement amounts
shall at the time of award be immediately subtracted from the remaining
principle and if the remaining principle is less than the award amount then the
difference shall be reimbursed.
Source. #13164, eff 1-26-21
Env-Dw 1405.03 Original
Loan Agreements (OLAs) for Governmental Entities.
(a) Following acceptance of an application from a
governmental entity and upon determining that funds are available, the
department shall prepare an original loan agreement (OLA) that contains the
following provisions:
(1) The loan amount;
(2) The interest rate for the loan;
(3) The length of the repayment term;
(4) A description of the construction project or
costs of O&M, as applicable;
(5) Authorization for representatives of the
department to examine any of the loan recipient’s records that pertain to
transactions relating to the loan agreement, construction contracts,
engineering contracts, or other consulting contracts for the purpose of
inspection, audit, and copying during normal business hours;
(6) For construction projects, a requirement for
the recipient to develop and adhere to an asset maintenance and renewal plan
for the funded improvements; and
(7) Any other provision(s) required by state or
federal law in order for the agreement to be valid.
(b) The department shall transmit the OLA to the
recipient for review. If the recipient
agrees with the terms, the recipient shall sign and date the OLA and return the
signed OLA to the department.
(c) Upon receipt of a signed OLA, the department
shall sign the OLA and submit the OLA to the G&C for approval.
(d) If approved by the G&C, then:
(1) The OLA shall be effective upon approval by
the G&C; and
(2) The department shall send a copy of the
approved OLA to the recipient.
Source. #13164, eff 1-26-21
Env-Dw 1405.04 Initial
Loan Documents (ILDs) for Non-Governmental Entities.
(a) Following acceptance of an application from a
non-governmental entity, the department shall send the applicant’s financial
information to the PFAS RLF financial advisor for review.
(b) If the department determines, based on the
assessment provided by the PFAS RLF financial advisor, that lending money to
the applicant would not pose an unreasonable risk of loss due to non-repayment
of funds provided to the applicant, the department shall prepare the initial
loan documents (ILD) that contain the following provisions:
(1) The loan amount;
(2) The interest rate for the loan;
(3) The length of the repayment term;
(4) A description of the construction project or
costs of O&M, as applicable;
(5) Authorization for representatives of the
department to examine any of the loan recipient’s records that pertain to
transactions relating to the loan agreement, construction contracts, or
engineering contracts for the purpose of inspection, audit, and copying during
normal business hours;
(6) For construction projects, a requirement for the
recipient to develop and adhere to an asset maintenance and renewal plan for
the funded improvements;
(7) Security for the loan; and
(8) Any other provision(s) required by state or
federal law in order for the agreement to be valid.
(c) The department shall send the drafted ILD to
the PFAS RLF attorney and to the applicant for review and comment.
(d) If the applicant agrees to the terms of the
ILD and the PFAS RLF attorney does not identify issues that could cause the ILD
to not be enforceable, the department shall submit the unsigned ILD to the
G&C for approval.
(e) If the G&C approves the ILD, the
department and the recipient shall schedule a loan closing for a mutually-acceptable date and time.
(f) The recipient shall bring the following
documents to the closing:
(1) Proof of authority to enter into contracts in
New Hampshire, such as a certificate of good standing from the New Hampshire
secretary of state’s office that is valid on the date of the loan closing;
(2) If the recipient was formed under the laws of
a jurisdiction other than New Hampshire, a certificate of good standing from
the state of incorporation or other registration that is valid as of the date
of the loan closing; and
(3) Any additional documents identified by the
PFAS RLF attorney and identified in the loan closing agenda.
(g) After the recipient signs the ILD, the
department shall:
(1) Sign the ILD; and
(2) Provide a copy of the signed ILD to the
recipient, the PFAS RLF financial advisor, and the PFAS RLF attorney.
(h) The ILD shall be
effective upon signing by the recipient and the department.
Source. #13164, eff 1-26-21
Env-Dw
1405.05 Interest Rates Established.
(a) The interest rate charged on the outstanding
balance of disbursed funds prior to the scheduled completion date or
substantial completion date for a construction project or date of first
repayment for costs of O&M shall be equal to 1.0 % annually.
(b) The interest rate charged on the outstanding
balance of disbursed funds after the date of scheduled completion or
substantial completion, whichever is earlier, for a construction project or
date of first repayment for costs of O&M shall be the interest rate established
pursuant to (c), below, that is in effect at the time the loan agreement is
transmitted to the recipient pursuant to Env-Dw
1405.03(b) or Env-Dw 1405.04(c), as applicable.
(c) The department shall establish the interest
rates for all loans annually on the first Thursday in August based
on
the 11-Bond Index published the last week of July in The
Bond Buyer, as provided by the New Hampshire treasury department.
(d) Loans funded jointly with the drinking water
state revolving fund (DWSRF) shall receive the DWSRF rate as set forth in Env‐Dw 1100 et seq.
(e) Provisions of
federal law that apply when federal funding is received shall not apply to PFAS
RLF construction projects unless the project receives federal funding from
another source, such as from the DWSRF.
Source. #13164, eff 1-26-21
Env-Dw 1405.06 Accrual
of Interest Charges.
(a) Interest on any loan funds disbursed to the
recipient shall begin to accrue on the date of each disbursement of such funds
by the state.
(b) The recipient shall pay interest charges
incurred on disbursed funds by choosing to pay:
(1) Prior to the commencement of the loan repayment;
(2) At the time of the first repayment;
(3) By adding the accrued interest to the
outstanding principal balance, provided the resulting balance does not exceed
the amount of the approved loan; or
(4) A combination of (1) through (3), above.
(c) The interest rate during loan repayment shall
be fixed over the loan repayment period.
Source. #13164, eff 1-26-21
Env-Dw 1405.07 Timely
Use of Funds.
(a) A recipient shall begin to expend funds
within 6 months of the effective date of the original loan agreement or initial
loan documents, as applicable.
(b) If a recipient fails to comply with (a),
above, the department shall request the recipient to show cause why the loan
should not be cancelled.
(c) The department’s request shall:
(1) Be in writing;
(2) Specify a date by which the recipient shall
respond to the request, which shall be not less than 20 working days from the
date of the notice; and
(3) Inform the recipient that the recipient may
request an adjudicative hearing prior to the loan being cancelled.
(d) If the recipient wishes to have an
adjudicative hearing, the recipient shall:
(1) Respond in writing to the request sent by the
department pursuant to (b), above; and
(2) Include a request for a hearing in the
response.
(e) If the recipient requests an adjudicative
hearing and a settlement is not reached, the hearing shall be conducted in
accordance with the provisions of Env-C 200 that apply to such hearings.
(f) If the recipient shows that the delay in
expending the funds was based on an excusable delay, the department shall not
cancel the loan.
Source. #13164, eff 1-26-21
Env-Dw 1405.08 Disbursement
Requests for Construction Projects.
(a) To obtain a disbursement for eligible work and
equipment from the funds awarded for a construction project, the recipient
shall submit a written disbursement request to the department by mail or email.
(b) The written request shall include the following,
as applicable to the request:
(1) A written request for disbursement that
includes the information specified in (c), below, and is signed as specified in
(d), below; and
(2) As applicable:
a. Invoices for
equipment and materials delivered and properly stored;
b. Invoices for
engineering or consulting services;
c. Payment
requisitions from the contractor(s); and
d. Invoices for
eligible work not covered under a. through c., above.
(c) The request
for disbursement shall include the following:
(1) The name and mailing address of the recipient;
(2) The total amount of the original loan or grant;
(3) The PFAS RLF project number and disbursement
request number;
(4) Whether the request is for a partial payment
or for final payment;
(5) The start and end dates of the period covered
by the request;
(6) For each of the following classifications,
the amount for the total project, the amount determined to be PFAS RLF
eligible, the amount included in previous requests, and the amount of the
current request, as applicable:
a.
Administrative costs;
b.
Pre-construction costs;
c. Construction;
d. Construction
administration;
e. Equipment;
f.
Miscellaneous costs; and
g. Other, with
a brief description;
(7) The total for each category of costs
identified in (6), above;
(8) The percent of the loan or grant previously disbursed;
(9) The total percent of loan or grant disbursed
including the current request; and
(10) The name, title and signature of the
authorized representative;
(d) The recipient shall not make disbursement
requests more frequently than once per calendar month per loan.
Source. #13164, eff 1-26-21
Env-Dw
1405.09 Disbursements.
(a) The department shall approve a request
submitted as specified in Env-Dw 1405.08 if it
determines:
(1) The costs covered by the request are eligible
costs covered by the recipient’s financial assistance agreement; and
(2) The costs have not been covered by any
previous disbursement.
(b) Upon approval of the request, the department
shall authorize the disbursement to be made from the PFAS RLF, subject to Env-Dw 1405.10.
Source. #13164, eff 1-26-21
Env-Dw 1405.10 Assurances
for Construction Projects. The
department shall not disburse any PFAS RLF funds for a construction project
until the recipient provides evidence of the following:
(a) Approved project plans and specifications, if
applicable;
(b) Compliance with best available technology
where applicable for primary and secondary contaminants;
(c) A written agreement to maintain project
financial accounts in accordance with Env-Dw 1405.18
and to maintain project accounts as separate accounts; and
(d) A written agreement to provide notice of initiation
of operation to the department upon beginning operation of the project.
Source. #13164, eff 1-26-21
Env-Dw
1405.11 Supplemental Loan Agreement
for Loans to Governmental Recipients for Construction Projects.
(a)
Upon completion of a construction project by a governmental recipient,
the department shall:
(1) Prepare a supplemental loan agreement (SLA)
to reflect actual project expenditures and to establish:
a. The loan term selected by the recipient and
the corresponding interest rate as stated in the OLA; and
b. The loan repayment schedule based on the
final project cost; and
(2) Transmit
the SLA to the recipient, who shall review and sign it.
(b)
Upon receipt of the signed SLA, the department shall sign the SLA and
send a copy thereof to the recipient.
Source. #13164, eff 1-26-21
Env-Dw
1405.12 Allonge for Loans to
Non-Governmental Recipients for Construction Projects.
(a) Upon
completion of a construction project by a non-governmental recipient, the
department shall:
(1) Prepare an allonge to reflect actual project expenditures
and to establish:
a. The loan term selected by the recipient and
the corresponding interest rate as stated in the ILD; and
b. The loan repayment schedule based on the
final project cost; and
(2) Transmit the allonge to:
a. The PFAS RLF attorney for review; and
b. The recipient, who shall review and sign it.
(b)
Upon receipt of a signed allonge, the department shall sign the allonge
and send a copy thereof to the recipient.
Source. #13164, eff 1-26-21
Env-Dw
1405.13 Supplemental Loan Agreement
for Loans to Governmental Recipients for O&M Costs. Reserved
Source. #13164, eff 1-26-21
Env-Dw
1405.14 Allonge for Loans to
Non-Governmental Recipients for O&M Costs. Reserved
Source. #13164, eff 1-26-21
Env-Dw
1405.15 Loan Repayment.
(a) The recipient shall repay all funds received
and interest accrued thereon to the department as stipulated in the SLA or
allonge, as applicable.
(b) The department shall deposit all funds that
are repaid under this chapter to be credited directly to the PFAS RLF.
(c) A community that meets the disadvantaged
affordability criteria established in Env-Dw 1405.02
that has received loan forgiveness pursuant to Env-Dw
1405.02 shall repay only such funds and interest remaining, if any, after the
forgiveness is applied.
(d) The loan repayment shall:
(1) Not exceed the loan term established in the
SLA or allonge;
(2) For governmental recipients for construction
projects, begin by the earlier of one year following substantial completion of
the project or one year following the scheduled completion date as stated in
the OLA; and
(3) For non-governmental recipients for
construction projects:
a. Commence
interest-only payments by 6 months following the earlier of substantial
completion of the project or the scheduled completion date as stated in the
ILD; and
b. Commence
principal and interest repayments by one year following the earlier of
substantial completion of the project or the scheduled completion date as
stated in the ILD.
(e) The
loan shall be amortized on an annual basis for governmental entities and on a monthly basis for non-governmental entities.
(f) Should excusable delay be incurred beyond the
scheduled completion date of a construction project, the department shall:
(1) Offer to modify the SLA or allonge, as
applicable, to account for the delays; and
(2) If the recipient so requests, negotiate an
appropriate modification of the SLA or allonge, as applicable.
(g) Any recipient may repay a loan, in whole or
in part, prior to the date stipulated in the SLA or allonge, as applicable,
with no prepayment penalty.
Source. #13164, eff 1-26-21
Env-Dw 1405.16 Use of
Funds; Return of Funds.
(a) The recipient shall use and expend financial
assistance provided from the PFAS RLF solely and exclusively for the payment of
authorized eligible construction costs or costs of O&M, as applicable, for
which the financial assistance was approved.
(b) If the recipient uses any funds provided from
the PFAS RLF for anything other than eligible costs on the specific project for
which such funds were furnished, the recipient shall return or otherwise repay
to the department all such funds.
Source. #13164, eff 1-26-21
Env-Dw 1405.17 Retainage
for Construction Projects.
(a) The recipient may withhold a percentage of all
partial payments to contractors on a construction project as retainage until
the project is complete.
(b) If the recipient intends to withhold a
retainage, the recipient shall specify the terms and conditions relating to the
retainage in the contract documents submitted pursuant to Env-Dw 1407.03.
Source. #13164, eff 1-26-21
Env-Dw
1405.18 Accounting. Each recipient shall:
(a) Use generally accepted accounting principles;
(b) Place all funds received from the PFAS RLF in
a project account for the sole purpose of planning, designing, and constructing
the construction project or costs of O&M, as applicable, as approved by the
department;
(c) Use all funds received from the PFAS RLF for
the sole purpose of planning, designing, and constructing the construction
project or paying O&M costs, as applicable, as approved by the department;
(d) Provide to the department an audit conducted
by an accountant licensed under RSA 309-B who meets the qualifications for a
forensic accountant established by the Governmental Accounting Standards Board
(GASB) for a governmental entity or by the Financial Accounting Standards Board
(FASB) for non-governmental entities:
(1) Annually, if the recipient expends more than
$500,000 of PFAS RLF funds in a calendar year; or
(2) In response to a department request for an
audit based on a reasonable suspicion of fraud or misuse of PFAS RLF funds;
(e) For a construction project, maintain
insurance coverage on the project in an amount adequate to protect the state’s
investment, as determined based on the nature of the project and the amount of
funding provided from the PFAS RLF in consultation with the department;
(f) For a construction project, comply with any
special conditions specified by the department’s environmental determination
until all financial obligations to the state have been discharged; and
(g) Continually abide by the terms of the
financial assistance agreement, applicable rules, and relevant state and
federal statutes for operation and maintenance of the facility.
Source. #13164, eff 1-26-21
PART Env-Dw 1406 ENVIRONMENTAL REVIEW FOR CONSTRUCTION
PROJECTS
Env-Dw 1406.01 Environmental Review Required for
Construction Projects. Any
construction project for which financial assistance from the PFAS RLF is
requested shall be reviewed by the department for impacts on the human and
natural environment in accordance with this part.
Source. #13164, eff 1-26-21
Env-Dw 1406.02 General
Procedure. The department shall
perform an environmental review and prepare an environmental review report
based on the applicant’s proposed construction project as specified in Env-Dw 1108.
Source. #13164, eff 1-26-21
PART Env-Dw 1407 DESIGN, CONSTRUCTION,
AND IMPLEMENTATION PHASES FOR CONSTRUCTION PROJECTS
Env-Dw 1407.01 Consulting
Contracts for Expenditures of PFAS RLF Funds.
(a) For all
construction projects funded from the PFAS RLF that require consulting
services, the contract for such services shall contain the following:
(1) A description of the services to be provided
by the consultant, including the due date for any report or plans that will be prepared;
(2) The recipient’s responsibilities under the contract;
(3) The estimated time of completion of the
services covered by the contract;
(4) Compensation to be paid to the consultant;
and
(5) Termination provisions.
(b) The recipient shall
comply with all applicable procedures and incidental legal requirements in
awarding the consultant’s contract.
Source. #13164, eff 1-26-21
Env-Dw 1407.02 Plans
and Specifications for Construction Projects.
(a) For construction projects, the recipient
shall submit engineering plans and specifications that conform to the
applicable design standards specified in Env-Dw 400.
(b) For projects other than construction
projects, the recipient shall submit plans and specifications that are
appropriate to the proposed project.
(c) Department approval of the plans and
specifications shall not relieve the recipient of any liabilities or
responsibilities with respect to the design, construction, operation, or
performance of the project.
Source. #13164, eff 1-26-21
Env-Dw 1407.03 Construction
Contract Documents for Construction Projects.
(a) The recipient shall submit construction
contract documents to the department for review and approval.
(b) No construction project shall be offered for
public bid until after the department has reviewed the contract documents as
specified in Env-Dw 1407.04.
(c) The construction contract documents submitted
by the recipient to the department shall contain the following:
(1) Bidding requirements for the construction of
the project that meet the requirements in Env-Dw
1407.05, including bid advertisement or solicitation for competitive
quotations, information for bidders, a bid proposal form that separates
eligible construction from ineligible construction, and applicable bid security
requirements;
(2) Agreement and applicable requirements for the
payment bond, performance bond, notice to proceed, and related documents such
as the contractor’s affidavit, the contractor’s release, the certificate of
substantial completion, and the format for change orders;
(3) For loans greater than $100,000, general and
supplemental conditions for the construction of the project, including
provisions requiring the contractor to obtain and maintain the appropriate
insurance coverage;
(4) Plans and specifications as specified in Env-Dw 1407.02;
(5) Appendices including boring logs, permits,
and other details as appropriate;
(6) Provisions giving authorized representatives
of the department access to all construction activities, books, records, and
documents for the purpose of inspection, audit, and copying during normal
business hours; and
(7) Such conditions, specifications, and other
provisions as are required to comply with state and local law.
Source. #13164, eff 1-26-21
Env-Dw
1407.04 Department Review of
Construction Contract Documents.
(a) The department shall review the construction
contract documents submitted pursuant to Env-Dw
1407.03 within 30 calendar days of receipt.
(b) The department shall approve the contract
documents if they:
(1) Meet the requirements listed in Env-Dw 1407.03(c);
(2) Are consistent with all applicable state
requirements; and
(3) Are consistent with the planning document
submitted pursuant to Env-Dw 1404.07.
(c) After the contract documents are approved, no
changes to the contract documents shall be made unless the recipient obtains
prior approval from the department pursuant to Env-Dw
1407.06.
(d) After the contract documents are approved, no
increases in project cost or scope shall be made unless the recipient obtains
prior approval from the department pursuant to Env-Dw
1407.06.
(e) Department approval of the contract documents
shall not relieve the recipient of any liabilities or responsibilities with
respect to the design, construction, operation, or performance of the project.
Source. #13164, eff 1-26-21
Env-Dw 1407.05 Bidding
Requirements for Construction Contracts.
Recipients of funds for a construction project shall comply with the
following bidding requirements:
(a) The bid period shall be not less than 14
calendar days, unless the department has approved a shorter bid period due to
an imminent threat to public health or safety;
(b) The advertisement for bids or competitive
quotes shall include the following information:
(1) The project name and contract number;
(2) The location of work;
(3) A description of work to be performed;
(4) The time and date at which the bids will be
publicly opened and read aloud, and a statement that bids received after that
time will not be accepted;
(5) An address and cost information for obtaining
plans and specifications; and
(6) The addresses where plans and specifications
can be examined;
(c) For projects with estimated construction
costs over $100,000, the advertisement shall also include:
(1) A requirement for a bid security in the
amount of 5% of the bid in the form of a certified check or a bid bond executed
by a surety company authorized to do business in New Hampshire and made payable
to the recipient; and
(2) A statement that a 100% performance bond and
a 100% payment bond will be required;
(d) The recipient shall reserve the right to:
(1) Reject any or all bids; and
(2) Waive any informalities or minor defects on
bids received; and
(e) If any addenda to the bid are needed, the
recipient shall:
(1) Submit the proposed addenda to the department
for review as much in advance of issuing it as possible;
(2) Refrain from issuing the addenda without
approval from the department; and
(3) Issue the approved addenda 5 days or more
prior to bid opening.
Source. #13164, eff 1-26-21
Env-Dw 1407.06 Changes
to Construction Contract Documents and Construction Project Cost or Scope.
(a) After the construction contract documents
have been approved by the department, the recipient shall not make, allow, or
authorize any changes, modifications, or amendments to or departure from the
approved plans and specifications that would materially or significantly affect
project cost, estimated revenues, or project design without the prior written
approval of the department.
(b) A request to modify
contract documents as described in (a), above, shall:
(1) Identify each change for which approval is sought;
(2) Explain the reason(s) for each change
requested, including an explanation of the operational or economic consequences
of the requested change(s) not being approved; and
(3) Explain how the request meets the criteria
specified in (d) or (e), below, as applicable.
(c) The department shall approve or deny the
request within 10 working days of receipt of a request that meets the criteria
of (b), above.
(d) For changes other
than increases to project cost or scope, the department shall approve
each requested change in the contract documents that the recipient demonstrates
are:
(1) Eligible costs that can be covered by the
existing financing arrangement, if there are any costs associated with the
change(s);
(2) Consistent with the goal(s) of the project;
and
(3) Protective of the health of the public served
by the recipient’s water system.
(e) The department shall approve a request for an
increase in project cost or scope if the following criteria are met:
(1) The increased cost or scope was not
reasonably foreseeable at the time the original project proposal was submitted;
(2) The cost increase results in a total cost no
greater than the prevailing rate for the item to which the cost is attributable
such as, but not limited to, labor and materials; and
(3) The item to which the cost increase is
attributable is an eligible cost as specified in Env-Dw
1403; and
(4) The PFAS RLF has sufficient monies available at
the time the request is filed to cover the proposed cost increase.
(f) The amount
of funding provided from the PFAS RLF shall be increased only by approval from
the department, with G&C approval.
Source. #13164, eff 1-26-21
Env-Dw 1407.07 Awarding
Construction Contracts.
(a) The
recipient of financial assistance from the PFAS RLF for a construction project
shall comply with all applicable legal procedures and other legal requirements
in advertising for bids and awarding the construction contract.
(b) The text of the construction contract
documents shall not vary from the text of the contract documents approved
pursuant to Env-Dw 1407.04, unless
a change has been approved pursuant to Env-Dw
1407.06.
(c) After receiving and reviewing bids, the
recipient shall select the lowest responsive bid or competitive quotation,
unless approval is requested and obtained from the department to award the
contract to a higher bid or quotation based on the lowest bid or quotation not
being from a responsible bidder.
(d)
The recipient shall request approval from the department to award the
construction contract by submitting the following in writing to the department:
(1) A revised estimate of eligible project costs;
(2) For loans greater than $100,000, monthly cash
flow projections;
(3) Evidence of solicitation for bids or
competitive quotations;
(4) A tabulation of all bids that were received;
(5) A letter signed by the recipient’s authorized
representative indicating the contract value and the name of the bidder to whom
the contract is planned to be awarded;
(6) A copy of the bid proposal of the bidder to
whom the contract is planned to be awarded;
(7) If the bidder selected is not the lowest
bidder, an explanation of why the lowest bidder was not selected; and
(8) Certification that all necessary permits,
land acquisitions, and easements have been secured.
(e) The department shall approve the award of the
construction contract if it determines that all applicable requirements have
been met. The applicant shall not award
the construction contract until after it has received written approval to do so
from the department.
(f)
For all construction projects funded by the PFAS RLF program, following
receipt of approval from the department the recipient shall sign a construction
contract with the selected contractor.
Source. #13164, eff 1-26-21
Env-Dw 1407.08 Recipient’s
Obligations for Inspections During Construction.
(a) During the construction phase of the project,
the recipient shall obtain the engineering or other inspection services necessary to
assure completion of the project in accordance with the financial assistance
agreement and the approved plans and specifications.
(b) After the construction contract is awarded,
the recipient shall provide for on-site inspections of the project by a
resident project representative that are sufficient to provide assurance to the
recipient and the department that the work is being performed in a satisfactory
manner in accordance with the approved plans and specifications, approved
alterations, and sound engineering principles and building practices.
Source. #13164, eff 1-26-21
Env-Dw 1407.09 Department
Inspections During Construction.
(a) The recipient shall allow the department to
inspect the project during normal business hours in order to
confirm that:
(1) The materials furnished meet the approved
specifications; and
(2) The project is being built in accordance with
the approved plans and specifications and any approved alterations.
(b) In conjunction with project inspections, the
department shall:
(1) Inspect the materials that are visible at the
time of the inspection to determine compliance with the approved plans and
specifications; and
(2) Document the manner and progress of the
project, conditions relating to the materials furnished, and the contractor’s
compliance with the approved plans and specifications for the project.
(c) Inspections by the department shall not
release the contractor from any obligation to perform the work in accordance
with the requirements of the contract documents, nor shall such inspections
release the project engineer from determining compliance with the requirements
of the contract documents.
(d) The contractor and recipient shall provide
the department with access to all areas of the project site, including moving
materials and equipment if necessary, as needed for
the department to determine whether the work as performed is in accordance with
the requirements and intent of the contract.
(e) The department shall, as soon as practicable,
bring to the attention of the recipient and the resident project representative
any discrepancies between the approved plans and specifications and the actual
work observed of which it becomes aware through its inspections.
(f) Upon being notified of any such
discrepancies, the recipient and the resident project representative shall
immediately:
(1) Initiate necessary action to rectify the
deficiencies; or
(2) Provide documentation explaining the
reason(s) for the discrepancies and demonstrating that the installation meets
applicable requirements.
(g) If the recipient’s resident project
representative disagrees with the department as to whether material furnished
or work performed conforms with the terms of the construction contract, the
recipient shall direct the resident project representative to reject questionable
materials and initiate other action provided for in the construction contract,
including suspension where necessary, until all disputed issues are resolved in
accordance with the terms of the construction contract.
Source. #13164, eff 1-26-21
Env-Dw 1407.10 Testing
During Construction.
(a) In addition to normal testing procedures required
of the recipient, the department shall require such additional tests of
building materials and processes as the department determines to be necessary
to demonstrate compliance with the approved plans and specifications and any
approved alterations thereto during the building of projects financed in whole
or in part by PFAS RLF funds.
(b) All tests, whether for the department or the
project engineer, shall conform to current American Water Works Association
standards as specified in Env-Dw 407, American
Association of State Highway and Transportation Officials, American Society of
Testing and Materials, and the New Hampshire department of transportation
published procedures, or similar criteria, as applicable to the specific
materials and processes proposed by the recipient to be used in the
project.
(c) The department shall specify which tests are
applicable based on the specific materials and processes proposed by the
recipient to be used in the project.
Samples for testing shall be furnished free of cost to the department
upon request at the construction site.
Source. #13164, eff 1-26-21
Env-Dw 1407.11 Limitations
on Construction Project Modifications; Requests for Approval.
(a) After construction has commenced, the
recipient shall not make, allow, or authorize any changes, modifications, or
amendments to, or any departures from, the approved plans and specifications
that would materially or significantly affect project cost, estimated revenues,
or project design in accordance with Env-Dw 1407.06
without prior written approval from the department.
(b) The recipient shall request approval for
changes covered by (a), above, by submitting the following information in
writing to the department:
(1) The name of the recipient and the name and
location of the recipient’s water system;
(2) The project number of the final financial
assistance agreement;
(3) For each modification for which the recipient
is seeking approval:
a. A
description of the modification; and
b. The
reason(s) why the modification is necessary; and
(4) An explanation of the operational and
economic consequences to the water system and to public health and the
environment of the department not approving the requested modifications.
(c) Prior departmental approval of project change
orders shall not be required if the recipient’s project engineer certifies to
the department that such change, modification, amendment, or departure:
(1) Will not materially or significantly affect
project cost, estimated revenues, or project design; and
(2) Is consistent with the objectives of the
project and within the scope of the final financial assistance agreement.
Source. #13164, eff 1-26-21
Env-Dw 1407.12 Approval
of Project Modifications.
(a) Subject to (b) and (c), below, the department
shall approve a request submitted pursuant to Env-Dw
1407.11 if:
(1) The scope of the project as modified is
consistent with the original intent of the financial assistance;
(2) The project as
modified will not cause the water system to be out of compliance with the
federal SDWA, 40 CFR Parts 141, 142, and 143, RSA 485, and applicable rules in
subtitle Env-Dw; and
(3) If additional PFAS RLF funds are requested,
then:
a. The
increased cost is approvable under the criteria established in Env-Dw 1407.06(e); and
b. The fund has
sufficient monies available at the time the request is filed to cover the
proposed cost increase.
(b) The department shall review the request and
notify the recipient and resident project representative as soon as practicable
considering the scope of the request.
(c) A change of project scope, such as the
addition of new construction items, shall not be eligible for additional
funding after loan closing unless one of the following conditions are met:
(1) The change of scope is necessary due to an
inadvertent oversight, and is needed to provide an operable water system and
not to replace faulty construction or equipment already funded; or
(2) The change of scope is necessary due to
changes in federal or state requirements.
(d) The
amount of funding provided from the PFAS RLF shall be increased only by a formal
amendment in writing with the department, with governor and council approval.
Source. #13164, eff 1-26-21
Env-Dw 1407.13 Construction
Phase Submittal. During the construction
phase of the project, the recipient shall submit to the department:
(a) A notice of completion of construction, upon
completion of project construction; and
(b) Any
building phase submittals required by the final financial assistance agreement
to be submitted to the department.
Source. #13164, eff 1-26-21
Env-Dw 1407.14 Final
Inspection of Construction Projects and Review of Records.
(a) Upon completion of any construction project
for which financial assistance from the PFAS RLF has been provided, the
applicant shall furnish to the department written notification of completion.
(b) Upon receipt of such notification, or upon
project completion should notification not be furnished as required, and prior
to the department approving the final loan disbursement, the department shall:
(1) Confirm that the project has been completed
as contemplated in the financial assistance agreement, which shall include
conducting a final on-site inspection of the project, if necessary, with the
recipient or the recipient’s designee; and
(2) Review the recipient’s records relative to
funds furnished to the recipient from the PFAS RLF.
Source. #13164, eff 1-26-21
PART Env-Dw 1408 WAIVERS
Env-Dw 1408.01 Purpose. The purpose of the rules in this part is to
accommodate situations in which strict compliance with all requirements established
by this chapter may not be in the best interests of the public or the PFAS RLF.
Source. #13164, eff 1-26-21
Env-Dw 1408.02 Procedures.
(a) Any applicant or recipient who is or would be
directly and adversely affected by the strict application of a rule in Env-Dw 1400 may request a waiver thereof from the department.
(b) Each request for a waiver shall be filed in
writing by the authorized representative of the applicant or recipient, as applicable.
(c) Each request for a waiver shall include the
information specified in Env-Dw 1408.03 and be signed
as required by Env-Dw 1408.04.
Source. #13164, eff 1-26-21
Env-Dw
1408.03 Content and Format of
Requests. The person requesting the
waiver shall provide the following information to the department:
(a) The name, mailing address, and daytime
telephone number including area code of the requestor;
(b) The eligibility request, application, or loan
to which the waiver request relates; and
(c) For each waiver sought, the following:
(1) The number of the specific section of the rules;
(2) A complete explanation of why a waiver is
being requested, including an explanation of the economic and operational
consequences of complying with the rule as written;
(3) If applicable, a full explanation of the
alternate(s) proposed to be substituted for the requirement in the rule,
including documentation or data, or both, to support the alternative;
(4) Whether the need for the waiver is
time-limited and, if so, the estimated length of time the waiver will be
needed; and
(5) A complete explanation of why the applicant
believes that having the waiver granted will meet the criteria in Env-Dw 1408.05.
Source. #13164, eff 1-26-21
Env-Dw
1408.04 Signature Required.
(a) The authorized representative of the applicant
or recipient that is requesting the waiver shall sign the request.
(b) The authorized representative’s signature
shall constitute certification that:
(1) The information provided is true, complete,
and not misleading to the best of the signer’s knowledge and belief;
(2) The signer understands that any waiver
granted based on false, incomplete, or misleading information is subject to
revocation; and
(3) The signer is subject to the penalties
specified in New Hampshire law for falsification in official matters, currently
RSA 641.
(c) If the signer is or is acting on behalf of a
listed engineer as defined in Env-C 502.10, the signature also shall constitute
certification that the signer understands that the submittal of false,
incomplete, or misleading information could constitute grounds for debarring
the listed engineer from the roster.
Source. #13164, eff 1-26-21
Env-Dw 1408.05 Criteria.
(a) Subject to (b), below, the department shall
grant a waiver if:
(1) Granting the waiver, conditional upon
implementation of alternatives, if applicable, will result in circumstances that
are as protective of the public, the environment, and the integrity of the PFAS
RLF program as the requirements contained in this chapter;
(2) Granting the waiver, conditional upon
implementation of alternatives, if applicable, will not adversely impact the
department’s obligations under RSA 485-H; and
(3) Strict adherence to the rule would not be in
the best interest of the public, the environment, or the PFAS RLF.
(b)
No waiver shall be granted if the effect of the waiver would be to waive
or modify a state or federal statutory requirement, including but not limited
to any requirement of RSA 485 or RSA 485-H unless such statute or grant expressly provides that the requirement may be waived
or modified.
Source. #13164, eff 1-26-21
Env-Dw
1408.06 Decisions.
(a) The department shall notify the person
requesting the waiver of its decision in writing within 30 calendar days of
receiving a complete request. If the
request is denied, the department shall specify the reason(s) for the denial in
the notice.
(b)
The department shall include such conditions in a waiver as are
necessary to ensure that the criteria specified in Env-Dw
1408.05 are met, including if applicable the
implementation of alternatives.
(c)
If the need for a waiver is temporary, the waiver shall specify the date
on which it expires.
Source. #13164, eff 1-26-21
Appendix A: State Statutes Implemented
Rule Section(s) |
State Statute(s) Implemented |
Env-Dw 1400 (also see specific
part below) |
RSA 485-H |
Env-Dw 1408 |
RSA 541-A:22, IV |
Appendix B: Statutory Definitions
RSA
485:1-a
I. “Community
water system” means a public water system which serves at least 15 service
connections used by year-round residents or regularly serves at least 25
year-round residents.
XI.
“Non-transient non-community water system” means a system which is not a
community water system and which serves the same 25
people, or more, over 6 months per year.
XIII. “Person”
means any individual, partnership, company, public or private corporation,
political subdivision or agency of the state, department, agency or
instrumentality of the United States, or any other legal entity.
XIV. “Political subdivision” means any
municipality, county, district, or any portion or combination of 2 or more
thereof.
XV. “Public water system” means a system for the
provision to the public of piped water for human consumption,
if such system has at least 15 service connections or regularly serves
an average of at least 25 individuals daily at least 60 days out of the year.
Such term includes (1) any collection, treatment, storage, and distribution
facilities under control of the operator of such system and used primarily in
connection with such system, and (2) any collection or pretreatment storage
facilities not under such control which are used primarily in connection with such
system. Any water system which meets all of the
following conditions is not a public water system:
(a) Consists only of distribution and storage
facilities (and does not have any collection and treatment facilities);
(b) Obtains all of its
water from, but is not owned or operated by, a public water system; and
(c) Does not sell water to any person.
Appendix C: Referenced
Statute
CHAPTER
485-H
PER
AND POLYFLUOROALKYL SUBSTANCES (PFAS)
FUND AND PROGRAMS
485-H:1 Purpose Statement.
Communities across the state have been impacted by per and
polyfluoroalkyl substances (PFAS) contamination, largely through no fault of
their own. The cost of remediating this
contamination for many communities would result in dramatically higher water
and sewer rates for end users. The
existence of these man-made chemicals, some of which are occurring at unhealthy
levels in New Hampshire’s drinking water, require a strategy to protect,
preserve, and enhance the water that New Hampshire citizens and environment
rely upon.
485-H:2 Definitions. In
this chapter:
I. “Community water system” means
“community water system” as defined in RSA 485:1-a.
II. “Department” means the
department of environmental services.
III. “Drinking water standard”
means the maximum contaminant levels in accordance with RSA 485:16-e.
IV. “Fund” means the PFAS
remediation loan fund established in RSA 485-H:10.
V. Non-transient non-community
water system” means “non-transient non-community water system as defined in RSA
485:1-a.
VI. “Wastewater residuals” means
septage, sludge, or biosolids.
485-H:3 Implementation of Drinking Water Protection
Program. The department shall provide low interest
loans to community water systems and non-profit, non-transient public water
systems whose testing of untreated source water shows confirmed exceedance of
the state maximum contaminant level for PFAS, for remediation efforts begun
after September 30, 2019.
I. Projects shall only be
financed after the applicant demonstrates that the proposed plan for
remediation is the most cost-effective solution, as reviewed and approved by
the department. The applicant shall
provide evidence in the application for funding that there are no no-cost or
low-cost efforts such as blending of source water or shutting down an impacted
source that would result in the system meeting applicable state maximum
contaminant level with no unreasonable adverse effects. The applicant shall also show that there is
no responsible party identified by the department or that the responsible
party, potentially including the applicant, has provided their appropriate
share of the funding for the proposed project.
II. Loans may be made for up to
the total cost of the project, after any responsible party’s contribution,
addressing the contamination.
485-H:4 Implementation of Groundwater, Surface Water
and Aquatic Life Protection. The department shall
provide low interest loans to publicly-owned and
non-profit wastewater and/or wastewater residual treatment or storage
facilities that are required to treat effluent and residuals to achieve PFAS
standards prior to discharge or disposal.
I. Projects shall only be
financed after the applicant demonstrates that the proposed plan for
remediation is the most cost-effective solution, as reviewed and approved by
the department. The applicant shall
provide evidence in the application for funding that there are no no-cost or
low-cost efforts that would result in the system meeting standards with no unreasonable
adverse effects. The applicant shall
also show that there is no responsible party identified by department or that
the responsible party, potentially including the applicant, has provided their
appropriate share of the funding for the proposed project.
II. Loans may be made for up to
the total cost of the project, after any responsible party’s contribution,
addressing the contamination.
485-H:5 Loan Principal Forgiveness Based Upon Need.
I. The department shall forgive
up to 10 percent of the loan principal to community water systems and
non-profit, non-transient non-community water systems using the same qualifying
standards for forgiveness used in the drinking water state revolving loan program
established under RSA 486:14.
II. The department shall forgive
up to 10 percent of the loan principal for publicly-owned
and non-profit wastewater treatment facilities using the same qualifying
standards for forgiveness used in the clean water state revolving loan program
established under RSA 486:14.
III. Total loan forgiveness under
this section shall not exceed $5 million for both drinking water and clean
water combined.
485-H:6 Contingent Reimbursement.
I. Following the reimbursement of
the department of justice for legal expenses related to relevant litigation;
the transfer of funds to the revenue stabilization reserve account pursuant to
RSA 7:6-e; the redemption of bonds issued or debt incurred pursuant to RSA
6:13-e, III(a); and reimbursement of the general fund for any debt principal or
interest payments made to support bonds issued or debt incurred pursuant to RSA
6:13-e, III(a), any remaining funds from judgments or settlements received by
the state resulting from lawsuits against the manufacturers of PFAS shall be
deposited into the drinking water and groundwater trust fund established in RSA
6-D:1.
II. In addition to the loan
forgiveness described in RSA 485-H:5, the department, upon certification by the
state treasurer that funds from judgments or settlements have been received and
used to redeem the bonds issued under RSA 6:13-e in full and the general fund
has been reimbursed for all interest and principal payments charged against it
to support said bond, shall grant partial loan forgiveness to the loan
recipients, up to 50 percent of the loan principal.
(a) If insufficient funds are
received by the state to cover 50 percent of the principal, the reimbursements
shall be prorated. In no instance shall
the loan reimbursement exceed 50 percent of the total loan amount, unless it
received loan forgiveness under RSA 485-H:5, in which case the combined maximum
shall be 60 percent.
(b) In the event a loan recipient
receives compensation from a responsible party, the department shall not grant
partial loan forgiveness that in combination with any compensation would exceed
100 percent of the total cost of the remediation.
485-H:7 Drinking Water and Groundwater Trust Fund
Exception.
Notwithstanding any law to the contrary, any funds deposited into the
drinking water and groundwater trust fund established in RSA 6-D:1 as a result of this chapter may be transferred to the
department to be used for funding PFAS remediation projects, including those at
wastewater treatment facilities, at the discretion of the fund’s advisory
commission.
485-H:8 Duties of the Department.
I. The department shall perform
the following duties to the limit of available funding:
(a) Establishing and
administrating the PFAS remediation loan program to assist municipalities;
community and non-profit, non-transient non-community water systems; and
publicly owned and non-profit wastewater treatment facilities with the cost of
complying with state maximum contaminant level for PFAS.
(b) Establishing and
administering a loan forgiveness program to assist disadvantaged communities
with loan repayment.
(c) Awarding loan funds to
projects that meet the following criteria:
(1) The project is or was
necessary to comply with a state mandated PFAS standard and the applicant for
funding is a municipality, a community water system, or a non-profit,
non-transient public water system, or a publicly-owned
or non-profit wastewater and/or wastewater residual treatment or storage
facility.
(2) The applicant has
demonstrated, to the satisfaction of the department, that low or no-cost
solutions are neither viable nor effective.
(d) Awarding reimbursements to
projects from the fund in a manner consistent with this chapter.
II. Every year beginning December
1, 2020, the department shall prepare and file a report with the general court
evaluating the progress made relative to PFAS contamination, the efficiency of
the program established under this chapter, and whether it continues to provide
the maximum benefit to New Hampshire citizens, and
providing any recommendations on potential additional tasks for which the fund
could be used to address PFAS contamination.
485-H:9 Rules. The department shall adopt
rules, under RSA 541-A, relative to administering PFAS remediation loan
programs for eligible projects necessary to meet state PFAS standards.
485-H:10
PFAS Remediation Loan Fund Established. There is hereby established in the department
the PFAS remediation loan fund which shall be maintained by the state treasurer
in distinct and separate custody from all other funds, notwithstanding RSA
6:12. The state treasurer may invest the
fund in accordance with RSA 6:8. Any
earnings on fund moneys shall be added to the fund. All moneys in the fund shall be non-lapsing
and shall be continually appropriated to the department. The PFAS remediation loan fund shall be used
to fund loans and reimbursements in accordance with this chapter. Funds from any bond proceeds, grants, loan
repayments, legislative appropriations, donations, and other funds shall be
credited to this fund.