THE STATE AND ITS GOVERNMENT
DEPARTMENT OF ENVIRONMENTAL SERVICES
21-O:14 Administrative Appeals.
I. (a) For purposes of this chapter, "
department permitting decision
" means the department's final action on an application or other request for a license as defined in RSA 541-A:1, VIII, whether the action to accept, grant in whole or in part with or without conditions, or deny the application or request and whether the action is taken by the commissioner or by the department official who has statutory authority to take such final action or to whom the commissioner has properly delegated the authority to take such final action.
(b) For purposes of this section, "
department enforcement decision
(1) The issuance of an administrative order issued under specific statutory authority for such an order, whether described as an order, an administrative order, a cease and desist order, a notice of violation and order of abatement, or other similar name, which specifies the facts and law that support the department's determination that one or more violations are occurring or have occurred and orders the recipient to cease on-going violations and to take such remediation actions as are necessary to come into compliance with applicable requirements.
(2) The revocation of or the refusal to renew a license as defined in RSA 541-A:1, VIII based on the permit holder's non-compliance with the statute, rules, or terms and conditions of the license or on other good or just cause as defined in rules adopted relative to the license.
" means a department permitting decision, a department enforcement decision, and any other decision made by the department that is expressly appealable to a council under the statute granting authority to the department to make the decision. The term does not include rulemaking or an agency declaratory ruling as provided for in RSA 541-A.
I-a. (a) Any person aggrieved by a department decision may, in addition to any other remedy provided by law, appeal to the council having jurisdiction over the subject matter of the appeal within 30 days of the date of the decision and shall set forth fully in a notice of appeal every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the notice of appeal shall be considered by the council. On any such appeal, the council shall determine whether the department decision was unlawful or unreasonable by reviewing the administrative record together with any evidence and testimony the parties to the appeal may present.
(b) On appeal, the council may affirm the department decision or may remand the matter to the commissioner with a determination that the decision complained of is unlawful or unreasonable. The council shall specify the factual and legal basis for its determination and shall identify the evidence in the record created before the council that supports its decision.
(c) In the case of a remand to the commissioner by the council, the commissioner shall:
(1) Accept the council's determination and take action consistent with the determination, imposing such conditions as are necessary and consistent with the purposes of the chapter under which the department decision was issued; or
(2) Appeal as provided in paragraph III.
(d) If the commissioner issues a revised decision, the department may at any time, and the appellant may within 30 days of issuance, request the council to confirm that the revised decision is consistent with the council's remand order.
I-b. As an alternative to filing an appeal under paragraph I-a and in addition to any other remedy provided by law, any person aggrieved by a department permitting decision may, within 30 days of the date of the decision, file with the council having jurisdiction over the subject matter of the appeal a preliminary notice of appeal and an offer to enter into settlement discussions. Filings made under this paragraph shall be made on forms maintained by the department and shall be governed by the following:
(a) Notwithstanding any other provision of law prescribing the contents of a notice of appeal, a preliminary notice of appeal shall contain only information identifying the appellant, the decision being appealed, and a list of every ground on which the appellant claims that the decision is unlawful or unreasonable.
(b) The preliminary notice of appeal and offer to enter into settlement discussions shall be served on the commissioner and, if not filed by the applicant, on the applicant on the same day as they are filed with the council.
(c) The offer to enter into settlement discussions shall propose mediated settlement discussions, unmediated settlement discussions, or both.
(d) The department and, if applicable, the applicant shall notify the appellant in writing within 7 days whether they accept the offer to enter into settlement discussions. Any such notification accepting the offer shall propose dates within the ensuing 30 days on which to hold the settlement discussions, and if the appellant's offer proposed both mediated and unmediated settlement discussions the notification shall elect one or the other.
(e) A notice of appeal that complies fully with the council's rules shall be filed no later than 45 days after the preliminary notice of appeal was filed by the appellant under this paragraph. No notice of appeal shall raise grounds for appeal beyond those contained in the preliminary notice of appeal.
(f) If the department and, if applicable, the applicant accept the offer to enter into settlement discussions the appeal shall be stayed until a notice of appeal is filed under subparagraph (e).
(g) If the parties enter into mediated settlement discussions under this paragraph, the provisions of paragraph I-c(a), (b), and (d) shall apply.
I-c. For all mediations ordered pursuant to RSA 21-M:3, IX(b):
(a) The mediator shall be selected by the participants.
(b) The cost of the mediation shall be borne equally by the participants unless the department elects not to pay its share of the cost of the mediation, in which case the appellant and any person who has been allowed to intervene may either agree to bear the cost of the mediation or be excused from the obligation to mediate.
(c) The pre-hearing order issued by the hearing officer shall specify a time period not to exceed 45 days within which the parties shall mediate. The parties may jointly request a specific amount of additional time if they have not reached a complete agreement within the time period specified by the hearing officer but believe a complete agreement can be reached within the additional time.
(d) If the parties and any intervenors reach agreement as a result of mediation and the agreement includes the issuance of a new or revised permit, only persons who did not participate in the mediation and who are aggrieved by the new or revised permit shall be entitled to appeal the issuance of such permit.
I-d. In any appeal of a department enforcement decision filed pursuant to paragraph I-a, the hearing officer shall not order the department to participate in mediation pursuant to RSA 21-M:3, IX(b). The department may participate in mediation in such cases in its sole discretion.
II. Appeal hearings before any council established by this chapter shall be conducted in accordance with the provisions of RSA 541-A governing adjudicative proceedings by an administrative hearing officer assigned by the department of justice, under RSA 21-M:3, VIII. All issues shall be determined as specified in RSA 21-M:3, IX.
III. Any party aggrieved by the disposition of an administrative appeal before any council established by this chapter may appeal such results in accordance with RSA 541.
IV. The councils established under this chapter shall adopt rules under RSA 541-A to govern the conduct of administrative appeals under this section. To the extent possible, the rules of the councils shall be consistent with each other.
Source. 1986, 202:1. 1987, 304:5. 1989, 339:7. 1996, 296:7. 2008, 171:5. 2010, 354:7, eff. Sept. 18, 2010. 2012, 246:3-5, eff. June 18, 2012. 2019, 202:1-3, eff. Sept. 8, 2019.