Bill Text - SB480 (2010)

Relative to appeals of decisions by the department of environmental services.


Revision: June 3, 2010, midnight

SB 480 – VERSION ADOPTED BY BOTH BODIES

03/24/10 1106s

13May2010… 1737h

06/02/10 2244CofC

2010 SESSION

10-2780

08/04

SENATE BILL 480

AN ACT relative to appeals of decisions by the department of environmental services.

SPONSORS: Sen. Fuller Clark, Dist 24; Sen. Merrill, Dist 21; Sen. Cilley, Dist 6; Sen. Lasky, Dist 13; Sen. Bradley, Dist 3; Rep. Kappler, Rock 2

COMMITTEE: Energy, Environment and Economic Development

ANALYSIS

This bill allows the various councils in the department of environmental services to hear appeals in their subject areas.

This bill is a request of the department of environmental services.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/24/10 1106s

13May2010… 1737h

06/02/10 2244CofC

10-2780

08/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT relative to appeals of decisions by the department of environmental services.

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

1 New Paragraphs; Attorney General; Hearing Officer. Amend RSA 21-M:3 by inserting after paragraph VII the following new paragraphs:

VIII. The attorney general shall appoint one or more individuals to serve as a hearing officer for appeals to any of the councils established under RSA 21-O. The attorney general and the commissioner of the department of environmental services may enter into a memorandum of understanding to transfer funds sufficient to fund the hearing officer position and related expenses. Such individual or individuals shall:

(a) Be qualified by education and experience in the conduct of administrative adjudicative hearings and the application of law to facts; and

(b) Be fully screened by the attorney general from the outset of any such appeal from any attorney representing the department.

IX. When designated as the hearing officer for a particular appeal, the hearing officer shall:

(a) Regulate all procedural aspects of a proceeding, including presiding over the hearing and any prehearing conferences;

(b) Adopt all findings of fact made by the council except to the extent any such finding is without evidentiary support in the record;

(c) Deliberate with the council before reaching conclusions on mixed questions of law and fact;

(d) Decide all questions of law presented during the pendency of the appeal; and

(e) Prepare and issue written decisions on all motions and on the merits of the appeal within 90 days of the conclusion of the hearing on the merits. The hearing officer shall provide the council with a proposed written decision on the merits within 45 days of the conclusion of the hearing on the merits. If requested to do so by the members of the council participating in the discussion, the hearing officer shall meet with those members within the 90 day period to discuss the decision.

X. The hearing officer may issue a subpoena, upon the request of any party to an appeal filed after the effective date of this paragraph, and only to the extent the information or testimony sought is reasonably necessary for the determination of matters within the council’s jurisdiction. A subpoena may be requested for purposes of discovery as may be allowed by the council’s rules or to provide testimony at any hearing conducted in the proceeding, or both. All costs associated with the issuance of any subpoena issued by the hearing officer shall be paid by the party requesting the subpoena.

2 Duties of Commissioner. Amend RSA 21-O:3, VIII to read as follows:

VIII. Provide all necessary clerical and technical support [requested by] to any council established by this chapter. At a minimum, the commissioner shall:

(a) For any appeal from a department decision before any such council provide all necessary clerical and support personnel and services in order to:

(1) Prepare notices and other documents required under RSA 541-A [as directed by the particular council] and distribute such notices and documents [upon the approval of the particular council involved] as directed by the hearing officer appointed under RSA 21-M:3, VIII;

(2) Schedule the conduct of all council administrative appeal proceedings, [with the approval of the particular council] as directed by the hearing officer appointed under RSA 21-M:3, VIII so as to ensure timely and efficient conduct of such proceedings;

(3) Prepare and maintain the record, required by RSA 541-A, of all [adjudicative proceedings conducted by councils] such appeals, which shall include the decisions issued in such proceedings.

(b) Provide comfortable and adequate space for the use of all councils in performing their official duties; and

(c) [Prepare, maintain as a public record, and continuously update a document which shall summarize the findings and decisions of all councils supported by the department.] Provide all necessary clerical and support personnel and services in order to:

(1) Prepare and distribute notices and other documents required under RSA 91-A for council meetings; and

(2) Prepare and maintain as public records the official minutes of the meetings of all councils supported by the department.

3 Wetlands Council. Amend RSA 21-O:5-a, V to read as follows:

V. The wetlands council shall hear [and decide] all administrative appeals from department decisions [relative to the functions and responsibilities of the department which relate to] made under RSA 482-A relative to wetlands [and protected shorelands], or under RSA 483-B relative to shoreland protection and shall decide all disputed issues of fact in such appeals, in accordance with [rules adopted by the council] RSA 21-O:14.

4 Water Council. Amend RSA 21-O:7, IV to read as follows:

IV. The water council shall hear [and decide] all administrative appeals from department decisions relative to the functions and responsibilities of within the expertise of the division of water other than department decisions made under RSA 482-A relative to wetlands[,] and RSA 483-B relative to shoreland protection, and shall decide all disputed issues of fact in such appeals, in accordance with RSA 21-O:14.

5 Waste Management Council. Amend RSA 21-O:9, V to read as follows:

V. The waste management council shall hear [and decide] all administrative appeals from department decisions relative to the functions and responsibilities of the division of waste management, and shall decide all disputed issues of fact in such appeals, in accordance with RSA 21-O:14.

6 Air Resources Council. Amend RSA 21-O:11, IV to read as follows:

IV. The air resources council shall hear [and decide] all administrative appeals from department decisions relative to the functions and responsibilities of the division of air resources and shall decide all disputed issues of fact in such appeals, in accordance with RSA 21-O:14.

7 Administrative Appeals. Amend RSA 21-O:14 to read as follows:

21-O:14 Administrative Appeals.

I. For purposes of this chapter, “department decision” means the final action on an application, petition, order or request taken by the commissioner or any department official who has statutory authority to make such final decision or to whom the commissioner has properly delegated the authority to take such final action. “Department decision” shall not mean rulemaking or an agency declaratory ruling as provided for in RSA 541-A, and shall not include any decisions of [the wetlands] any council.

II. 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. 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.

[II.] III. Appeal hearings before [all] any [councils] 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.] IV. Persons aggrieved by the disposition of administrative appeals before any council established by this chapter may appeal such results in accordance with RSA 541.

[IV.] V. The councils established under this chapter [may] 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.

8 Report Required. No later than April 1, 2011, the attorney general shall submit a report, including any recommendations that the attorney general may deem appropriate for consideration as legislation in the 2012 legislative session to modify or otherwise alter current processes of appeals from administrative decisions issued by executive branch agencies to the president of the senate, the

speaker of the house of representatives and to the chairpersons of the senate and house committees with jurisdiction over the subject matter contained in RSA 21-M:3 and RSA 21-O.

9 Effective Date. This act shall take effect 60 days after its passage.