Revision: Jan. 6, 2012, midnight
HB 256-FN – AS AMENDED BY THE HOUSE
4Jan2012… 2811h
2011 SESSION
06/09
HOUSE BILL 256-FN
AN ACT relative to the administrative appeals process of the department of environmental services and establishing a committee to study the appeal process of the department of environmental services.
COMMITTEE: Resources, Recreation and Development
This bill modifies the administrative appeals process of the department of environmental services.
This bill establishes a committee to examine the appeal process 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
4Jan2012… 2811h
11-0713
06/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the administrative appeals process of the department of environmental services and establishing a committee to study the appeal process of the department of environmental services.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Attorney General; Hearing Officers. Amend RSA 21-M:3, VIII to read as follows:
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[.]; and
(c) If appointed on a case-by-case basis, be chosen whenever possible from a list of neutral persons maintained by an independent authority such as the judicial branch.
2 Attorney General; Hearing Officer. Amend RSA 21-M:3, IX to read as follows:
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) At the first prehearing conference, recommend to the parties and any intervenors that they participate in mediation, provided the hearing officer concludes that it is reasonably possible that mediation will result in the resolution of the issues in dispute in the proceeding. If the parties agree to mediation, the pre-hearing order issued by the hearing officer shall specify a time period in which the parties may mediate. The parties may 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 with the additional time. If one or more persons have been allowed to intervene, the parties shall select a mediator only after determining whether any intervenor has any conflict of interest concerns about the mediator. The costs of mediation shall be borne by the appellant unless otherwise agreed to by the parties.
(c) Adopt all findings of fact made by the council except to the extent any such finding is without evidentiary support in the record;
[(c)] (d) Deliberate with the council before reaching conclusions on mixed questions of law and fact;
[(d)] (e) Decide all questions of law presented during the pendency of the appeal; and
[(e)] (f) 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.
3 Water Council; Scope of Jurisdiction. Amend RSA 21-O:7, IV to read as follows:
IV. The water council shall hear all administrative appeals from department decisions relative to the functions and responsibilities [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.
4 Administrative Appeals; Department Decision. RSA 21-O:14, I is repealed and reenacted to read as follows:
I.(a) For purposes of this chapter, “department permitting decision” means the department’s final action to grant in whole or in part, with or without conditions, or to deny an application or other request for a license as defined in RSA 541-A:1, VIII, whether the action is taken by the commissioner or by the 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.
(b) For purposes of this section, “department enforcement decision” means:
(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.
(c) “Department decision” 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.
5 New Paragraphs; Administrative Appeals; Mediation Option for Permitting Decisions. Amend RSA 21-O:14 by inserting after paragraph 1-a the following new paragraphs:
I-b. Appeals of department permitting decisions shall be subject to the following:
(a) For purposes of this paragraph, the following definitions shall apply:
(1) “Initiate mediation” or “initiation of mediation” means that the persons whose dispute is to be mediated have entered into an agreement for the conduct of the mediation with a specific mediator.
(2) “Termination of mediation” means the earlier of:
(A) Ninety days from the initiation of mediation; or
(B) The date on which the mediator and the persons participating in the mediation agree that a mediated agreement is unlikely to be reached and continuing the mediation will not be productive.
(b) An applicant who wishes to appeal a department permitting decision to a council shall, within 30 days of the date of the decision, file either a notice of appeal as specified in rules of the council or a notice of intent to appeal with request for mediation. If an applicant files a notice of intent to appeal with request for mediation instead of a notice of appeal, the following shall apply:
(1) The applicant and the department shall initiate mediation within 30 days of the filing of the request. If the department is aware that other persons may have standing to appeal the same permitting decision, the department shall invite such persons to participate in the mediation.
(2) If the applicant and the department reach agreement as a result of mediation or other discussions, the matter shall be closed on such terms as have been agreed to. If the agreement includes the issuance of a new or revised permit, such permit shall constitute a new, appealable decision only as to aggrieved persons who have standing to appeal the decision and who were not invited to participate in the mediation.
(3) If the applicant and the department are not able to reach agreement as a result of mediation or other discussions and the applicant wishes to pursue the appeal, the applicant shall file a notice of appeal as specified in rules of the council within 30 days of the termination of mediation.
(4) If the applicant and the department do not initiate mediation within 30 days of the date the request was filed and the applicant wishes to pursue the appeal, the applicant shall file a notice of appeal as specified in rules of the council within 45 days of the date the request was filed.
(5) If an applicant who originally filed a notice of intent to appeal and request for mediation does not file a notice of appeal within the time limit specified in subparagraph (b)(3) or (b)(4), as applicable, the applicant shall have no further recourse to challenge the department’s decision.
(c) A person who is not the applicant who wishes to appeal a department permitting decision shall, within 30 days of the date of the decision, file either a notice of appeal as specified in rules of the council or, if the applicant agrees to mediation, a notice of intent to appeal with request for mediation. If a request for mediation is filed with the applicant’s agreement, the following shall apply:
(1) The department, the applicant, and the person wishing to appeal who is not the applicant, who shall be known as the participants, shall collectively initiate mediation within 30 days of the filing of the request. If the department is aware that other persons may have standing to appeal the same permitting decision, the department shall invite such persons to participate in the mediation.
(2) If the participants reach agreement as a result of mediation or other discussions, the matter shall be closed on such terms as have been agreed to. If the agreement includes the issuance of a new or revised permit, such permit shall constitute a new, appealable decision only as to aggrieved persons who have standing to appeal the decision and who were not invited to participate in the mediation.
(3) If the participants are not able to reach agreement as a result of mediation or other discussions and the person who requested the mediation wishes to pursue the appeal, that person shall file a notice of appeal as specified in rules of the council within 30 days of the termination of mediation.
(4) If the participants do not initiate mediation within 30 days of the date the request was filed and the person who requested the mediation wishes to pursue the appeal, that person shall file a notice of appeal as specified in rules of the council within 45 days of the date the request was filed.
(5) If the person who originally filed a notice of intent to appeal and request for mediation does not file a notice of appeal within the time limit specified in subparagraph (c)(3) or (c)(4), as applicable, the person shall have no further recourse to challenge the department’s decision.
(d) If an applicant files a notice of intent to appeal and request for mediation and a person who is not the applicant files a notice of appeal, the non-applicant shall be invited to participate in the mediation and all proceedings on the non-applicant’s appeal shall be stayed pending the outcome of the mediation.
(e) The costs of any mediation conducted under this paragraph shall be borne by the person requesting mediation.
(f) Nothing in this paragraph shall limit or otherwise modify the authority of a hearing officer to recommend mediation under RSA 21-M:3, IX(b).
I-c. Any person aggrieved by a department decision that is not a department permitting decision may, in addition to any other remedy provided by law, appeal to the council having jurisdiction over the subject matter of the appeal. Unless a different time period is specified in the statute authorizing the department to make the decision being appealed, the person wishing to appeal shall file a notice of appeal within 30 days of the date of the decision.
6 Air Pollution Control; Appeals; Time for Filing. RSA 125-C:12, III is repealed and reenacted to read as follows:
III. Any person aggrieved by a decision of the commissioner to grant in whole or in part, with or without conditions, or to deny a permit who wishes to appeal the decision shall proceed in accordance with RSA 21-O:14, I-b.
7 Fill and Dredge in Wetlands; Powers of Department. Amend RSA 482-A:6, III and IV to read as follows:
III. Whenever it is found that a wetlands is at immediate risk from dredging, filling, or other activity in violation of this chapter, the department may issue an emergency order in writing requiring the immediate cessation of such activity. Any person to whom such an order is directed shall comply immediately, but may [request reconsideration and then] appeal as provided in RSA 482-A:10.
IV. The department may issue an order to any person in violation of this chapter, a rule adopted under this chapter or any condition in a permit issued under this chapter to comply with this chapter, the rule or the permit, and require such remedial measures as may be necessary. Any person to whom such an order is directed may [request reconsideration and then] appeal as provided in RSA 482-A:10.
8 Fill and Dredge in Wetlands; Appeals. RSA 482-A:10, IV is repealed and reenacted to read as follows:
IV. An appeal from a decision of the department under RSA 482-A:3 after reconsideration shall be filed in accordance with RSA 21-O:14, I-b and rules adopted by the council pursuant to RSA 541-A regarding the number of copies to be filed, the address to which the appeal must be sent or delivered, and the method of delivery. An appeal from an order issued by the department under RSA 482-A:6 shall be filed in accordance with RSA 21-O:14, I-c and rules adopted by the council pursuant to RSA 541-A regarding the number of copies to be filed, the address to which the appeal must be sent or delivered, and the method of delivery.
IV-a. An appeal to the council shall contain a detailed description of the land involved in the department's decision and shall set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the appeal shall be considered by the council.
9 Availability of Mediation in Pending Appeals. In addition to applying to all appeals filed on or after the effective date of this act, section 1 shall apply to any appeal that has been filed but has not yet had a hearing before the council as of the effective date of this act.
10 Committee Established. There is established a committee to evaluate alternative models for appealing decisions of the department of environmental services, adjudicating cases relating to environmental issues, and evaluating opportunities for application of the recommended systems to appeals of other agencies to achieve greater efficiency, impartiality, cost effectiveness, and enhanced delivery of justice.
11 Membership and Compensation.
I. The members of the committee shall be as follows:
(a) Six members of the house of representatives, 2 of whom shall serve on the resources, recreation and development committee, and at least 2 of whom shall serve on the house judiciary committee, appointed by the speaker of the house of representatives.
(b) Three members of the senate, at least one of whom shall serve on the energy and natural resources committee, appointed by the president of the senate.
II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.
12 Duties. The committee shall study the effectiveness of delivering justice, efficiency, impartiality, costs, and benefits of alternative processes for appealing decisions of the department of environmental services and adjudicating environmental issues. The committee shall also evaluate opportunities for the application of the recommended systems to appeals of other agencies.
13 Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Five members of the committee shall constitute a quorum.
14 Report. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, the chief justice of the New Hampshire supreme court, and the state library on or before November 1, 2012.
15 Effective Date. This act shall take effect upon its passage.
LBAO
11-0713
Revised 02/09/11
HB 256 FISCAL NOTE
AN ACT relative to the administrative appeals process of the department of environmental services and establishing a committee to study the appeal process of the department of environmental services.
FISCAL IMPACT:
The Department of Justice and the Judicial Branch state this bill may increase state general fund expenditures by an indeterminable amount in FY 2011 and each fiscal year thereafter. There will be no fiscal impact on state, county, and local revenues, or county and local expenditures.
METHODOLOGY:
The Department of Justice states this bill allows persons aggrieved by the Department of Environmental Services to appeal to the superior court. The Department states general fund expenditures may increase if roughly 50 percent of DES appeals are filed in superior court. The Department estimates it would require the services of one assistant attorney general and one part-time paralegal at labor grade 19 to manage the caseload for DES. The Department estimates increased personnel costs as follows:
FY 2012 |
FY 2013 |
FY 2014 |
FY 2015 | |
Assistant Attorney General Salary |
66,950 |
68,959 |
71,027 |
73,158 |
Social Security (@ 6.2%) |
4,151 |
4,275 |
4,404 |
4,536 |
Medicare (@ 1.45%) |
971 |
1,000 |
1,030 |
1,061 |
Retirement |
8,242 |
8,454 |
8,708 |
8,969 |
Life Insurance |
20 |
20 |
20 |
20 |
Dental |
937 |
984 |
1,033 |
1,085 |
Health |
14,709 |
16,285 |
18,030 |
19,962 |
Assistant Attorney General Subtotal |
95,980 |
99,977 |
104,252 |
108,791 |
Paralegal (LG 19 @ 50 percent FTE) |
17,433 |
18,145 |
18,925 |
19,695 |
Social Security (@ 6.2%) |
1,081 |
1,125 |
1,173 |
1,221 |
Medicare (@ 1.45%) |
253 |
263 |
274 |
286 |
Paralegal Subtotal |
18,767 |
19,533 |
20,372 |
21,202 |
Current Expenses (phone, postage, software licenses) |
1,700 |
1,100 |
1,100 |
1,100 |
Equipment (Computers, chair, desk, file, phone) |
3,000 |
|||
Total |
$119,447 |
$120,610 |
$125,724 |
$131,093 |
The Judicial Branch states it has no data with which to estimate the specific cost of appeals for cases from the Department of Environmental Services. However, from a judicial needs assessment study done by the National Center for State Courts, case types classified as complex equity cases such as labor board appeals, planning board appeals, and zoning board appeals are estimated to cost $590 in FY 2012 and $596 in FY 2013. The Branch notes these studies are now more than five years old regarding judicial time and three years old for clerical time, and changes have occurred during that time span which may have affected the cost of proceedings. Nonetheless, if the proposed bill resulted in seventeen additional complex equity cases, the cost to the Branch would exceed $10,000.
The Department of Environmental Services states from 2008 to 2010 an annual average of approximately 40 appeals of DES decisions were filed with the four councils having authority to hear the appeals. The Department assumes 50 percent, or approximately 20 appeals would be filed in superior court annually and two Department employees may spend an average of 40 hours on each appeal for a total of 1,600 hours annually (20 appeals x 2 employees x 40 hours = 1,600). The Department assumes the current budget and staffing would remain the same, however, additional responsibilities at current staffing levels will affect the availability of personnel to address other duties also assigned to the Department.
This bill does not contain an appropriation or establish positions.