Bill Text - HB1239 (2010)

(2nd New Title) relative to processing certain environmental permits and administrative fines for violations of dredge and fill requirements, relative to air quality in public schools, and drinking water revolving loan funds.


Revision: June 3, 2010, midnight

HB 1239 – VERSION ADOPTED BY BOTH BODIES

03Mar2010… 0261h

24Mar2010… 0996h

05/13/10 2071s

02Jun2010… 2153cofc

2010 SESSION

10-2505

08/03

HOUSE BILL 1239

AN ACT relative to processing certain environmental permits and administrative fines for violations of dredge and fill requirements, relative to air quality in public schools, and drinking water revolving loan funds.

SPONSORS: Rep. Gottling, Sull 3; Rep. Sad, Ches 2

COMMITTEE: Resources, Recreation and Development

AMENDED ANALYSIS

This bill:

I. Requires the department of environmental services to approve, deny, schedule a public hearing, or extend the time for rendering a decision on wetlands permit applications.

II. Raises the fine for violations of the chapter relative to fill and dredge in wetlands.

III Clarifies a provision relating to submission of checklists in investigations of air quality in schools, which was inserted by HB 1289 of the 2010 legislative session.

IV. Changes a provision regarding drinking water revolving loan funds in HB 1399 of the 2010 legislative session to reflect current law.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03Mar2010… 0261h

24Mar2010… 0996h

05/13/10 2071s

02Jun2010… 2153cofc

10-2505

08/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT relative to processing certain environmental permits and administrative fines for violations of dredge and fill requirements, relative to air quality in public schools, and drinking water revolving loan funds.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Time for Rendering Decision on Wetlands Permit Applications. Amend RSA 482-A:3, XIV(a)(3)-(5) to read as follows:

(3) Where the department requests additional information pursuant to subparagraph (a)(2), within 30 days of the department’s receipt of a complete response to the department’s information request:

(A) Approve [or deny] the application, in whole or in part, and issue a permit; or

[(B) Commence a non-adjudicative proceeding] (B) Deny the application and issue written findings in support of the denial; or

(C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner; or

[(C)] (D) Extend the time for [response] rendering a decision on the application for good cause and with the written agreement of the applicant[.]; or

(4) Where no request for additional information is made pursuant to subparagraph [(b)] (a)(2), within 75 days from the issuance of the notice of administrative completeness for proposed projects under one acre of jurisdictional impact, or 105 days for all others [if the application proposes more than one acre of jurisdictional impact]:

(A) Approve [or deny] the application, in whole or in part, and issue a permit; or

[(B) Commence a non-adjudicative proceeding] (B) Deny the application and issue written findings in support of the denial; or

(C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner[.]; or

(D) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

(5) Where the department has [commenced a non-adjudicative] held a public hearing on an application filed under this chapter, within 60 days following the closure of the hearing record, approve the application in whole or in part, and issue a permit or deny the application [either in whole or in part] and issue written findings in support of the denial.

2 Time for Rendering Decision on Wetlands Permit Applications; Remedy. Amend RSA 482-A:3, XIV(b) to read as follows:

(b)(1) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to 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] subparagraphs (a)(3), (a)(4), and (a)(5), the applicant may ask the department to issue the permit by submitting a written request. If the applicant has previously agreed to accept communications from the department by electronic means, a request submitted electronically by the applicant shall constitute a written request.

(2) Within 14 days of the date of receipt of a written request from the applicant to issue the permit, the department shall:

(A) Approve the application, in whole or in part, and issue a permit; or

(B) Deny the application and issue written findings in support of the denial.

(3) If the department does not issue either a permit or a written denial within the 14-day period, the applicant shall be deemed to have a permit by default and may proceed with the project as presented in the application. The authorization provided by this subparagraph shall not relieve the applicant of complying with all requirements applicable to the project, including but not limited to requirements established in or under this chapter, RSA 485-A relating to water quality, and federal requirements.

(4) Upon receipt of a written request from an applicant, the department shall issue written confirmation that the applicant has a permit by default pursuant to subparagraph (b)(3), which authorizes the applicant to proceed with the project as presented in the application and requires the work to comply with all requirements applicable to the project, including but not limited to requirements established in or under this chapter, and RSA 485-A relating to water quality, and federal requirements.

3 New Subparagraphs; Suspension of Review of Wetlands Permit Applications; Enforcement Action. Amend RSA 482-A:3, XIV by inserting after subparagraph (e) the following new subparagraphs:

(f) The department may extend the time for rendering a decision under subparagraphs (a)(3)(D) and (a)(4)(D), without the applicant’s agreement, on an application from an applicant who previously has been determined, after the exhaustion of available appellate remedies, to have failed to comply with this chapter or any rule adopted or permit or approval issued under this chapter, or to have misrepresented any material fact made in connection with any activity regulated or prohibited by this chapter, pursuant to an action initiated under RSA 482-A:13, RSA 482-A:14, or RSA 482-A:14-b. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application, but shall not exceed 30 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.

(g) The department may suspend review of an application for a proposed project on a property with respect to which the department has commenced an enforcement action against the applicant for any violation of this chapter, RSA 483-B, RSA 485-A:17, or RSA 485-A:29-44, or of any rule adopted or permit or approval issued pursuant to this chapter, RSA 483-B, RSA 485-A:17, or RSA 485-A:29-44. Any such suspension shall expire upon conclusion of the enforcement action and completion of any remedial actions the department may require to address the violation; provided, however, that the department may resume its review of the application sooner if doing so will facilitate resolution of the violation. The department shall resume its review of the application at the point the review was suspended, except that the department may extend any of the time limits under this paragraph and its rules up to a total of 30 days for all such extensions. For purposes of this subparagraph, “enforcement action” means an action under RSA 482-A:13, RSA 482-A:14, RSA 482-A:14-b, RSA 483-B:18, RSA 485-A:22, RSA 485-A:42, or RSA 485-A:43.

4 Administrative Fines. Amend RSA 482-A:13 to read as follows:

482-A:13 Administrative Fine. The commissioner, after notice and hearing in accordance with the procedures set forth in RSA 541-A, is empowered to impose an administrative fine of up to [$2,000] $5,000 for each [offense] violation, irrespective of the duration of violation, upon any person who violates any provision of this chapter. This fine is appealable under RSA 541. Any administrative fine imposed under this section will not preclude the imposition of further penalties under this chapter. The proceeds of administrative fines levied pursuant to this section shall be placed in the nonlapsing fund authorized in RSA 482-A:14, III.

5 Time for Rendering Decision on Shoreland Permit Applications. Amend RSA 483-B:5-b, V(b) and (c) to read as follows:

(b) When the department requests additional information pursuant to subparagraph (a), the department shall, within 30 days of the department’s receipt of the information:

(1) Approve the application, in whole or in part, and issue a permit; or

(2) Deny the application, [with] and issue written findings in support of the [decision, in whole or in part] denial; or

(3) Extend the time for [response] rendering a decision on the application for good cause and with the written agreement of the applicant.

(c) Where no request for additional information is made, the department shall, within 30 days of receipt of the application for a permit or 75 days of receipt of an application for a permit that will require a variance of the minimum standard of RSA 483-B:9, V or a waiver of the minimum standards of RSA 483-B:9[,]:

(1) Approve [or deny] the application, [with] in whole or in part, and issue a permit; or

(2) Deny the application, and issue written findings in support of the [decision in whole or in part.] denial; or

(3) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

6 Time for Rendering Decision on Shoreland Permit Applications; Remedy. RSA 483-B:5-b, V(d) is repealed and reenacted to read as follows:

(d)(1) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to act within the applicable time frame established in subparagraphs (b) and (c), the applicant may ask the department to issue the permit by submitting a written request. If the applicant has previously agreed to accept communications from the department by electronic means, a request submitted electronically by the applicant shall constitute a written request.

(2) Within 14 days of the date of receipt of a written request from the applicant to issue the permit, the department shall:

(A) Approve the application, in whole or in part, and issue a permit; or

(B) Deny the application and issue written findings in support of the denial.

(3) If the department does not issue either a permit or a written denial within the 14-day period, the applicant shall be deemed to have a permit by default and may proceed with the project as presented in the application. The authorization provided by this subparagraph shall not relieve the applicant of complying with all requirements applicable to the project, including but not limited to requirements established in or under this chapter and RSA 485-A relating to water quality.

(4) Upon receipt of a written request from an applicant, the department shall issue written confirmation that the applicant has a permit by default pursuant to subparagraph (d)(3), which authorizes the applicant to proceed with the project as presented in the application and requires the work to comply with all requirements applicable to the project, including but not limited to requirements established in or under this chapter and RSA 485-A relating to water quality.

7 New Subparagraphs; Suspension of Review of Shoreland Permit Applications; Enforcement Action. Amend RSA 483-B:5-b, V by inserting after subparagraph (e) the following new subparagraphs:

(f) The department may extend the time for rendering a decision under subparagraphs (b)(3) and (c)(3), without the applicant’s agreement, on an application from an applicant who previously has been determined, after the exhaustion of available appellate remedies, to have failed to comply with this chapter or any rule adopted or permit or approval issued under this chapter, or to have misrepresented any material fact made in connection with any activity regulated or prohibited by this chapter, pursuant to an action initiated under RSA 483-B:18. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application, and shall not exceed 30 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.

(g) The department may suspend review of an application for a proposed project on a property with respect to which the department has commenced an enforcement action against the applicant for any violation of this chapter, RSA 482-A, RSA 485-A:17, or RSA 485-A:29-44, or of any rule adopted or permit or approval issued pursuant to this chapter, RSA 482-A, RSA 485-A:17, or RSA 485-A:29-44. Any such suspension shall expire upon conclusion of the enforcement action and completion of any remedial actions the department may require to address the violation; provided, however, that the department may resume its review of the application sooner if doing so will facilitate resolution of the violation. The department shall resume its review of the application at the point the review was suspended, except that the department may extend any of the time limits under this paragraph and its rules up to a total of 30 days for all such extensions. For purposes of this subparagraph, “enforcement action” means an action initiated under RSA 482-A:13, RSA 482-A:14, RSA 482-A:14-b, RSA 483-B:18, RSA 485-A:22, RSA 485-A:42, or RSA 485-A:43.

8 Time for Rendering Decision on Terrain Alteration Permit Applications. Amend RSA 485-A:17, II-b (b) and (c) to read as follows:

(b) If the department requests additional information pursuant to subparagraph (a), the department shall, within 30 days of the department’s receipt of the information:

(1) Approve the application in whole or in part and issue a permit; or

(2) Deny the application[, in whole or in part] and issue written findings in support of the denial; or

(3) Extend the time for [response] rendering a decision on the application for good cause and with the written agreement of the applicant.

(c) If no request for additional information is made pursuant to subparagraph (b), the department shall, within 50 days of receipt of the application[,]:

(1) Approve the application, in whole or in part[.] and issue a permit; or

(2) Deny the application, and issue written findings in support of the denial; or

(3) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

9 Time for Rendering Decision on Terrain Alteration Permit Applications; Remedy. RSA 485-A:17, II-b(d) is repealed and reenacted to read as follows:

(d)(1) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to act within the applicable time frame established in subparagraphs (b) and (c), the applicant may ask the department to issue the permit by submitting a written request. If the applicant has previously agreed to accept communications from the department by electronic means, a request submitted electronically by the applicant shall constitute a written request.

(2) Within 14 days of the date of receipt of a written request from the applicant to issue the permit, the department shall:

(A) Approve the application, in whole or in part, and issue a permit; or

(B) Deny the application and issue written findings in support of the denial.

(3) If the department does not issue either a permit or a written denial within the 14-day period, the applicant shall be deemed to have a permit by default and may proceed with the project as presented in the application. The authorization provided by this subparagraph shall not relieve the applicant of complying with all requirements applicable to the project, including but not limited to requirements established in or under this section and RSA 485-A relating to water quality.

(4) Upon receipt of a written request from an applicant, the department shall issue written confirmation that the applicant has a permit by default pursuant to subparagraph (d)(3), which authorizes the applicant to proceed with the project as presented in the application and requires the work to comply with all requirements applicable to the project, including but not limited to requirements established in or under this section and RSA 485-A relating to water quality.

10 New Subparagraphs; Suspension of Review of Terrain Alteration Permit Application; Enforcement Action. Amend RSA 485-A:17, II-b by inserting after subparagraph (e) the following new subparagraphs:

(f) The department may extend the time for rendering a decision under subparagraphs (b)(3) and (c)(3), without the applicant’s agreement, on an application from an applicant who previously has been determined, after the exhaustion of available appellate remedies, to have failed to comply with this section or any rule adopted or permit or approval issued under this section, or to have misrepresented any material fact made in connection with any activity regulated or prohibited by this section, pursuant to an action initiated under RSA 485-A:22. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application, and shall not exceed 30 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.

(g) The department may suspend review of an application for a proposed project on a property with respect to which the department has commenced an enforcement action against the applicant for any violation of this section, RSA 482-A, RSA 483-B, or RSA 485-A:29-44, or of any rule adopted or permit or approval issued pursuant to this section, RSA 482-A, RSA 483-B, or RSA 485-A:29-44. Any such suspension shall expire upon conclusion of the enforcement action and completion of any remedial actions the department may require to address the violation; provided, however, that the department may resume its review of the application sooner if doing so will facilitate resolution of the violation. The department shall resume its review of the application at the point the review was suspended, except that the department may extend any of the time limits under this paragraph and its rules up to a total of 30 days for all such extensions. For purposes of this subparagraph, “enforcement action” means an action initiated under RSA 482-A:13, RSA 482-A:14, RSA 482-A:14-b, RSA 483-B:18, RSA 485-A:22, RSA 485-A:42, or RSA 485-A:43.

11 Action on Subdivision and On-Site Waste Disposal Permit Applications. Amend RSA 485-A:31 to read as follows:

485-A:31 Action on Applications.

I. Subject to paragraphs II and III, the department shall give notice in writing to the person submitting the plans and specifications for subdivision of land of its approval or disapproval of such plans and specifications within 30 days of the date such plans and specifications and the required fees are received by the department and shall give notice in writing to the person submitting plans and specifications for sewage or waste disposal systems of its approval or disapproval of such plans and specifications within 15 working days of the date such plans and specifications and the required fees are received by the department. Unless such written disapproval shall be mailed to the person submitting plans and specifications within 30 days in the case of plans and specifications for subdivision of land and 15 working days in the case of plans and specifications for sewage or waste disposal systems from the date of receipt with the required fees by the department, the plans and specifications shall be deemed to have been approved. The department shall send a copy of the approval or disapproval of such plans and specifications to the planning board or board of selectmen of the affected municipality.

II. The department may extend the time for rendering a decision under paragraph I, without the applicant’s agreement, on an application from an applicant who previously has been determined, after the exhaustion of available appellate remedies, to have failed to comply with RSA 485-A:29-44, or any rule adopted or permit or approval issued pursuant to RSA 485-A:29-44, or to have misrepresented any material fact made in connection with any activity regulated or prohibited by RSA 485-A:29-44, pursuant to an action initiated under RSA 485-A:42 or RSA 485-A:43. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application and shall not exceed 30 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.

III. The department may suspend a review of an application for a proposed project on a property with respect to which the department has commenced an enforcement action against the applicant for any violation of RSA 485-A:29-44; RSA 482-A; RSA 483-B; or RSA 485-A:17, or of any rule adopted or permit or approval issued pursuant to RSA 485-A:29-44; RSA 482-A; RSA 483-B; or RSA 485-A:17. Any such suspension shall expire upon conclusion of the enforcement action and completion of any remedial actions the department may require to address the violation; provided, however, that the department may resume its review of the application sooner if doing so will facilitate resolution of the violation. The department shall resume its review of the application at the point the review was suspended, except that the department may extend any of the time limits under this paragraph and its rules up to a total of 30 days for all such extensions. For purposes of this subparagraph, “enforcement action” means an action initiated under RSA 482-A:13; RSA 482-A:14; RSA 482-A:14-b; RSA 483-B:18; RSA 485-A:22; RSA 485-A:42; or RSA 485-A:43.

12 Physical Review of Factors Affecting Air Quality. Amend RSA 200:11-a, I to read as follows:

I. The school principal, or designee shall annually investigate the air quality of any schoolhouse or building used for school purposes using a [check list] checklist provided by the department of education. The checklist shall be established in rules adopted by the state board of education pursuant to RSA 541-A. The purpose of the review shall be to consider physical factors that can influence the air quality within the schoolhouse or building. The review shall require a physical assessment of the facilities, not a measurement of the air quality. The checklist shall allow an evaluation of the following physical conditions that can impact air quality: general cleanliness, ventilation, moisture control, and chemical use and storage. The completed [check list] checklist shall be filed after the annual inspection with the department of education, the local school board, and the local health officer. Checklists shall remain on file for 5 years. Checklists shall be reviewed during the 5 year school approval process and shall be a factor in the approval process for a public school.

13 Contingency. If HB 1289 of the 2010 legislative session becomes law, section 12 of this act shall take effect January 1, 2011 at 12:01 a.m. If HB 1289 does not become law, section 12 of this act shall not take effect.

14 State Water Pollution Control and Drinking Water Revolving Loan Funds. RSA 486:14, I(b) is repealed and reenacted to read as follows:

(b) A sum equal to 2 percent of all loan principal balances outstanding each year, which shall be an administrative charge, shall be set aside to be used by the department of environmental services to pay the costs of administering the state water pollution control and drinking water revolving loan funds. The funds set aside shall be deposited in nonlapsing water pollution control and drinking water loan administration funds and shall be continually appropriated to the department exclusively for the purposes of this section. If the sum of the administrative charge plus interest charge as established by rules of the department of environmental services based on market rates is less than 2 percent for a loan, then the administrative charge shall be equal to this sum and no interest charge shall be assessed on the loan.

15 Contingency. If HB 1399 of the 2010 legislative session becomes law, section 14 of this act shall take effect at 12:01 a.m. on the effective date of HB 1399. If HB 1399 does not become law, section 14 of this act shall not take effect.

16 Effective Date.

I. Sections 1-11 of this act shall take effect 60 days after its passage.

II. Section 12 of this act shall take effect as provided in section 13 of this act.

III. Section 14 of this act shall take effect as provided in section 15 of this act.

LBAO

10-2505 Amended 03/25/10

HB 1239 FISCAL NOTE

AN ACT relative to processing certain environmental permits and administrative fines for violations of dredge and fill requirements.

FISCAL IMPACT:

      The Department of Environmental Services states this bill, as amended by the House (Amendment #2010-0996h), may increase state restricted revenue, county expenditures, and local expenditures by an indeterminable amount in FY 2011 and each year thereafter. There is no fiscal impact on state expenditures or county and local revenue.

METHODOLOGY:

    The Department of Environmental Services states this bill increases the fine imposed for violation of fill and dredge permits in wetlands and allows the Department to suspend review of an application until an applicant has corrected a violation that is subject of an enforcement action on the property. The Department is not able to estimate how many violations might occur to determine any increase in revenue to the wetlands and shoreland review fund. Additionally, the Department is not able to estimate how many violations might occur that would involve a county or municipality to determine any potential increase in county or local expenditures.