CHAPTER 363
HB 1471 – FINAL VERSION
13Feb2008… 0250h
05/15/08 1748s
05/15/08 1923s
04Jun2008… 2083cofc
04Jun2008… 2185eba
2008 SESSION
08/09
HOUSE BILL 1471
AN ACT relative to time limits for excavating and dredging permits and directing the department of environmental services to make legislative proposals regarding solid waste management.
SPONSORS: Rep. Spang, Straf 7; Rep. Weyler, Rock 8; Rep. O'Connell, Hills 6; Rep. Webb, Merr 2; Rep. Irwin, Hills 3; Sen. Janeway, Dist 7
COMMITTEE: Resources, Recreation and Development
This bill expands the time limits for excavating and dredging permit applications.
This bill also directs the department of environmental services to prepare legislative proposals addressing issues in solid waste management.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13Feb2008… 0250h
05/15/08 1748s
05/15/08 1923s
04Jun2008… 2083cofc
04Jun2008… 2185eba
08-2421
08/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT relative to time limits for excavating and dredging permits and directing the department of environmental services to make legislative proposals regarding solid waste management.
Be it Enacted by the Senate and House of Representatives in General Court convened:
363:1 Time Limits for Applications. Amend RSA 482-A:3, XIV to read as follows:
XIV.(a) In processing an application for permits under this chapter, except for a permit by notification, the department shall:
[(a)] (1) Within 14 days of receipt by the department, issue a notice of administrative completeness or send notice to the applicant, at the address provided on the application, identifying any additional information required to make the application administratively complete and providing the applicant with the name and telephone number of the department employee [who may be contacted] to whom all correspondence shall be directed by the designated department employee regarding incompleteness of the application. Each receipt of additional information in response to any notice shall re-commence the 14-day period until the department issues a notice of administrative completeness. Any notice of incompleteness sent under this subparagraph shall specify that the applicant or authorized agent shall submit such information as soon as practicable and shall notify the applicant or authorized agent that if the requested information is not received within 60 days of the notice, the department shall deny the application.
[(b)] (2) Within 75 days of the issuance of a notice of administrative completeness for projects where the applicant proposes under one acre of jurisdictional impact and 105 days for all other projects, request any additional information that the department is permitted by law to require to complete its evaluation of the application, together with any written technical comments the department deems necessary. Such request and technical comments may be sent by electronic means if the applicant or authorized agent has indicated an agreement to accept communications by electronic means, either by so indicating on the application or by a signed statement from the applicant or authorized agent that communicating by electronic means is acceptable. Any request for additional information under this subparagraph shall specify that the applicant submit such information as soon as practicable and shall notify the applicant that if the requested information is not received within [120] 60 days of the request, the department shall deny the application. The department may grant an extension of this 60 day time period upon request of the applicant.
[(c)] (3) Where the department requests additional information pursuant to subparagraph [(b), the department shall] (a)(2), within 30 days of the department’s receipt of [the information] a complete response to the department’s information request:
[(1)] (A) Approve or deny the application, in whole or in part; or
[(2)] (B) Commence a non-adjudicative proceeding in accordance with this chapter and rules adopted by the commissioner; or
[(3)] (C) Extend the time for response for good cause and with the written agreement of the applicant.
[(d)] (4) Where no request for additional information is made pursuant to subparagraph (b), [the department shall,] within 75 days from the issuance of the notice of administrative completeness, or 105 days if the application proposes more than one acre of jurisdictional impact:
[(1)] (A) Approve or deny the application, in whole or in part; or
[(2)] (B) Commence a non-adjudicative proceeding in accordance with this chapter and rules adopted by the commissioner.
[(e)] (5) Where the department has commenced a non-adjudicative hearing on an application filed under this chapter, [the department shall,] within 60 days following the closure of the hearing record, approve or deny the application either in whole or in part.
[(f)] (b) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to [issue a notice of administrative completeness or render any other decision within the time limits provided in this paragraph, the application shall be deemed to be approved] act within the applicable time frame established in subparagraphs (a)(2) and (c)(4), the department shall notify the applicant that a determination was not made within the statutory time requirements. Upon this notice, the department shall reimburse the applicant 25 percent of the application fee. Within 14 days following the date on which action should have been taken pursuant to the applicable time frame established in subparagraphs (a)(2) or (a)(4), the department shall issue an approval or denial of the permit application, or reach a mutually acceptable agreement with the applicant for an extension of the time limit to act upon the application. After 14 days, if the department has not rendered a decision or made an agreement for an extension, an additional 25 percent of the application fee shall be reimbursed to the applicant.
(c) If extraordinary circumstances prevent the department from conducting its normal function, time frames prescribed by this paragraph shall be suspended until such condition has ended, as determined by the commissioner.
[(g)] (d) The time limits prescribed by this paragraph shall not apply to an application filed after the applicant has already undertaken some or all of the work covered by the application, or where the applicant has been adjudicated after final appeal, or otherwise does not contest, the department’s designation as a chronic non-complier in accordance with rules adopted pursuant to this chapter.
(e) Any request for a significant amendment to a pending application or an existing permit which changes the footprint of the permitted fill or dredge area shall be deemed a new application subject to the provisions of RSA 482-A:3, I and the time limits prescribed by this paragraph. “Significant amendment” means an amendment which changes the proposed or previously approved acreage of the permitted fill or dredge area by 20 percent or more, relocates the proposed footprint of the permitted fill or dredge area, includes a prime wetland or surface waters of the state, includes a wetland of a different classification as classified by the department, or includes non-wetland areas requiring permits for filling and dredging. This meaning of “significant amendment” shall not apply to an application amendment that is in response to a request from the department.
363:2 Department; Reconsideration. Amend RSA 482-A:10, II-III to read as follows:
II. A request for reconsideration of a department decision under RSA 482-A:3 shall be filed with the department within [20] 30 days of issuance of the department’s decision [or order]. The request for reconsideration shall describe in detail each ground for [complaint. No ground not set forth in the request for reconsideration shall be considered by the council, or by the superior court except as provided in paragraph VIII of this section] the request for reconsideration.
III. On reconsideration, the department shall receive and consider any new and additional evidence presented, and shall make findings of fact and rulings of law in support of its decision after reconsideration. The department may hold a public hearing in accordance with its rules. Reconsideration hearings shall not be subject to the requirements of RSA 541-A. Reconsideration hearings shall be noticed in accordance with rules adopted by the department, which notice shall be sent to all persons entitled to notice of applications under RSA 482-A:8 and RSA 482-A:9, and the department shall make a record of the proceedings. The department shall grant or deny the [application] request for reconsideration within 30 days of the [service] department’s receipt of the [application] request or explain in writing to the applicant why the [application] request cannot be acted on and a statement of the time reasonably necessary to act on the [application] request. However, if the basis for denial includes failure by the applicant to submit all requested information and the applicant submits all of the requested information with the request for reconsideration, the department shall act on the request within 75 days from the date of the department’s receipt of the request for projects where the applicant proposes under one acre of jurisdictional impact, and within 105 days for all other projects.
363:3 Fill and Dredge Wetlands; Administrative Provisions. Amend RSA 482-A:11, III(a) to read as follows:
III.(a) Upon written notification to the department by a municipal conservation commission that it intends to investigate any notice received by it pursuant to RSA 482-A:3, the department shall [suspend action upon such notice and shall] not make its decision on the application that is the subject of the notice [of a minor or minimum impact project nor hold a hearing on it if a major project] until it has received and acknowledged receipt of a written report from such commission, or until 40 days from the date of filing with the municipal clerk of such notice, whichever occurs earlier, subject to an extension as permitted by the department. In connection with any local investigation, a conservation commission may hold a public informational meeting or a public hearing, the record of which shall be made a part of the record of the department. Where the department grants an extension, the time limits prescribed by RSA 482-A:3, XIV(b) shall be suspended until a date agreed to by the applicant and the department. If a conservation commission makes a recommendation to the department in its report, the department shall specifically consider such recommendation and shall make written findings with respect to each issue raised in such report which is contrary to the decision of the department. If notification by a local conservation commission pursuant to this paragraph is not received by the department within 14 days following the date the notice is filed with the municipal clerk, the department shall not suspend its normal action, but shall proceed as if no notification has been made.
363:4 Development of Legislative Proposals.
I. The department of environmental services is hereby directed to prepare a plan and proposal for legislative action in the 2009 session addressing the following items related to solid waste management:
(a) Proposals to achieve compliance with the integrated goal, hierarchy established in RSA 149-M:3: source reduction; recycling and reuse; composting; waste-to-energy technologies; incineration without resource recovery; and landfilling.
(b) Proposals to ensure measurable progress toward the state’s unmet waste diversion goal of 40 percent by the year 2000, established in RSA 149-M:2. The plan should include an alternative to the 2000 date and more aggressive work by the department to establish a new timetable along with a higher but achievable waste diversion goal.
(c) A plan that will ensure capacity for disposal of New Hampshire waste.
(d) Recommendations for strengthening and streamlining the procedures for the development and formation of regional solid waste districts and cooperative waste plans, to avoid duplication of effort, unnecessary expense, and the need to transport waste long distances.
(e) A proposal to incorporate into the solid waste management statutes the requirement to review a public benefit determination when there is a modification which materially increases or reduces the capacity of a privately owned landfill and the standards under which the commissioner shall make a determination that such a proposed modification will not cause or contribute to a failure to attain or maintain any public benefits required by RSA 149-M:11.
(f) Other changes to RSA 149-M necessary to ensure safe, economical, and environmentally sound management of solid waste.
II. The department shall report its findings and recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library in the form of a report on or before December 1, 2008.
363:5 Department; Reconsideration. RSA 482-A:10, II-III is repealed and reenacted to read as follows:
II. A request for reconsideration of a department decision under RSA 482-A:3 shall be filed with the department within 30 days of issuance of the department’s decision. The request for reconsideration shall describe in detail each ground for the request for reconsideration.
III. On reconsideration, the department shall receive and consider any new and additional evidence presented, and shall make findings of fact and rulings of law in support of its decision after reconsideration. The department may hold a public hearing in accordance with its rules. Reconsideration hearings shall not be subject to the requirements of RSA 541-A. Reconsideration hearings shall be noticed in accordance with rules adopted by the department, which notice shall be sent to all persons entitled to notice of applications under RSA 482-A:8 and RSA 482-A:9, and the department shall make a record of the proceedings. The department shall grant or deny the request for reconsideration within 30 days of the department’s receipt of the request or explain in writing to the applicant why the request cannot be acted on and a statement of the time reasonably necessary to act on the request. However, if the basis for denial includes failure by the applicant to submit all requested information and the applicant submits all of the requested information with the request for reconsideration, the department shall act on the request within 75 days from the date of the department’s receipt of the request for projects where the applicant proposes under one acre of jurisdictional impact, and within 105 days for all other projects.
363:6 Contingency. If SB 352-FN of the 2008 legislative session becomes law, section 5 of this act shall take effect 60 days after its passage and section 2 of this act shall not take effect. If SB 352-FN does not become law, section 2 of this act shall take effect 60 days after its passage and section 5 of this act shall not take effect.
363:7 Effective Date.
I. Sections 4 and 6 of this act shall take effect upon its passage.
II. Sections 2 and 5 of this act shall take effect as provided in section 6 of this act.
III. The remainder of this act shall take effect 60 days after its passage.
Approved: July 11, 2008
Effective Date: I. Sections 4 and 6 shall take effect July 11, 2008.
II. Sections 2 and 5 shall take effect as provided in section 6.
III. Remainder shall take effect September 9, 2008.