CHAPTER Env-Dw 200 RULE WAIVERS; CONFIDENTIAL BUSINESS
INFORMATION; HEARING PROCEDURES
Statutory Authority:
RSA 485:2, V; RSA 541-A:16, I(b)
Revision Note:
Document #10607, effective 6-1-14,
adopted Parts Env-Dw 201, 203, 204, and 205, and Env-Dw 202.01 and Env-Dw
202.02, under a new Chapter Env-Dw 200 entitled “Rule Waivers; Confidential
Business Information; Hearing Procedures.”
Document #10607 also readopted with amendments and renumbered former
rule Env-Ws 301.04 entitled “Waivers” under the new subtitle as Env-Dw 202.03
through Env-Dw 202.07. The redesignation
from subtitle Env-Ws to subtitle Env-Dw was done pursuant to a rules
reorganization plan for Department rules approved by the Director of the Office
of Legislative Services on 9-7-05.
The former rule Env-Ws 301.04 had last been filed under
Document #8498, effective 11-30-05, but it did not expire on 11-30-13 since it
was extended pursuant to RSA 541-A:14-a until replaced by the rules in Document
#10607, effective 6-1-14.
Document #10607 replaces all prior filings for the former
rule Env-Ws 301.04. The prior filings
for this former rule, beginning with Document #6521, effective 6-4-97, which
had readopted with amendments the entire Chapter Env-Ws 300, include the
following documents:
#6521,
eff 6-4-97
#8360,
INTERIM, eff 6-4-05
#8498,
eff 11-30-05
As practice and procedure rules, the rules in Chapter
Env-Dw 200 under Document #10607 will not expire except pursuant to RSA
541-A:17, II.
PART
Env-Dw 201 PURPOSE AND APPLICABILITY
Env-Dw 201.01 Purpose. The purpose of the rules in this chapter is
to supplement the provisions of RSA 541-A and Env-C 200 relative to procedures
applicable to proceedings under RSA 485 and the NH drinking water rules.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 201.02 Applicability. The rules in this chapter shall apply to all
procedures undertaken pursuant to RSA 485 and the NH drinking water rules.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
PART Env-Dw 202 WAIVER OF NH DRINKING WATER RULES
Env-Dw
202.01 Purpose. The purpose of the rules in this part is to
accommodate situations where strict adherence to the NH drinking water rules
could cause operational or economic consequences that are not outweighed by the
public health benefit of complying with the rules as written.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw
202.02 Applicability. The rules in this part shall apply only to
requirements that are not subject to the requirements of RSA 485:42 relative to
variances and exemptions.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 202.03 Waiver Request Procedures.
(a) The owner of a
public water system that is or would be adversely affected by the strict
application of one or more rules in subtitle Env-Dw, or in Env-Ws 300 until
such rules are moved to subtitle Env-Dw, who wishes to request a waiver of
those rules shall request the waiver in accordance with this part.
(b)
A request for a waiver shall:
(1) Be submitted in writing to the department;
(2) Include the information specified in Env-Dw
202.04; and
(3) Be signed as specified in Env-Dw 202.05.
(c) Any waiver request
that is submitted as part of an application for a permit or approval, or a
modification thereof, shall be submitted with such application, or as soon
thereafter as the need for the waiver is identified by the applicant or the
department.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 202.04 Required
Information. The request for a
waiver shall include the following:
(a)
Identification of the water system for which the waiver is being
requested, by name, PWS identifier, and location
of the system;
(b) A specific
reference to each section of the rules for which a waiver is being sought;
(c) A full
explanation of why a waiver is being requested, including an explanation of the
operational or economic consequences of complying with the rule as written in
comparison to the public health benefit of complying with the rule as written;
(d) If the owner
proposes to use an alternative to the requirement for which a waiver is sought
or a modification of the requirement, a complete explanation of the alternative
or modification with data or other materials that support the explanation;
(e) Whether the
waiver is sought for a specific period of time and, if so, how long the waiver
will be needed; and
(f) A full
explanation of why the owner believes that having the waiver granted will meet
the criteria in Env-Dw 202.06.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 202.05 Signature
Required.
(a) The owner shall
sign and date the waiver request.
(b) The owner’s
signature shall constitute certification that:
(1) The owner has personally examined and is
familiar with the information submitted in or with the waiver request;
(2) Based on the owner’s inquiry of those
individuals immediately responsible for obtaining the information, the owner
believes that the submitted information is true and correct to the best of the
individual’s knowledge and belief; and
(3) The owner understands that he or she is
subject to the penalties specified in RSA 641:3 for making unsworn false
statements.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 202.06 Criteria.
(a)
Subject
to (b), below, the department shall grant a waiver if it finds
that:
(1) The requirement is not
mandated by state or federal statute;
(2) Granting the waiver, with or without
conditions, will be as protective of public health as complying with the
requirement as written;
(3) Granting the waiver, with or without
conditions, will not adversely impact the department’s obligations under RSA
485 and obligations associated with maintaining primacy from the EPA; and
(4) Strict adherence to the NH drinking water
rules could cause operational or economic consequences that are not outweighed
by the public health benefit of complying with the rules as written.
(b) The department shall consider economic,
technological, practical application, and safety issues in evaluating a waiver
request, but shall not grant a waiver solely on the basis of cost.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 202.07 Decision.
(a)
The department shall notify the owner in writing of its decision on the
waiver request.
(b) If the waiver request is denied, the notice
sent pursuant to (a), above, shall specifically set forth the reason(s) for the
denial.
(c)
If a waiver is granted, the department shall include such conditions in
the waiver as are needed to ensure that the criteria specified in Env-Dw
202.06(a) are met.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
PART Env-Dw 203 CLAIMS OF CONFIDENTIALITY
Env-Dw 203.01 Purpose. The purpose of this part is to provide a
mechanism by which a person who submits information to the department can
protect confidential business information or trade secrets.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw
203.02 Procedure. Subject to Env-C 208.05, any person
submitting information to the department may make a claim of confidentiality
for all confidential business information, or any part thereof, pursuant to the
criteria and procedures of Env-C 208.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
PART Env-Dw 204
NON-ADJUDICATIVE PUBLIC HEARINGS
Env-Dw
204.01 Applicability. Non-adjudicative public hearings shall be
held in the following cases:
(a) When proposing to adopt public water system
rules;
(b) For any matter that is not a contested case
for which the department is required by law or by the public water system rules
to hold a hearing; and
(c) For any matter normally not requiring public
participation but deemed by the department to have significant public interest.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw
204.02 Procedure. The procedures for a non-adjudicative public
hearing shall be as specified in the provisions of Env-C 200 that are
applicable to non-adjudicative hearings.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
PART Env-Dw 205 ADJUDICATIVE HEARINGS
Env-Dw
205.01 Applicability. An adjudicative hearing shall be held by the
department in the following cases:
(a) To give a permittee or other affected party
an opportunity to show cause why the department should not proceed with a
proposed decision to suspend or revoke any permit under RSA 485 and the public
water system rules; and
(b) In any other case that is a contested case as
defined by RSA 541-A, provided however that all proceedings relative to applications for
permits or approvals shall be non-adjudicative proceedings under RSA 541-A:29,
II(a) until such time as the department issues a final decision on the
application.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Env-Dw 205.02 Procedure. The procedures for an adjudicative hearing
shall be as specified in RSA 541-A and the provisions of Env-C 200 that are
applicable to adjudicative hearings.
Source. (See Revision Note at chapter heading for
Env-Dw 200) #10607, eff 6-1-14
Appendix
|
Rule Section(s) |
State Statute(s) Implemented |
|
Env-Dw 201 |
RSA 485:1-16 |
|
Env-Dw 202 |
RSA 485:1-16; RSA
541-A:22, IV |
|
Env-Dw 203 |
RSA 485:1-16 |
|
Env-Dw 204 |
RSA 485:1-16 |
|
Env-Dw 205 |
RSA 485:1-16 |