CHAPTER Env-AC 200 PROCEDURAL RULES
Statutory Authority: RSA 21-O:14, IV; RSA 541-A:16, I; RSA
541-A:30-a
PART Env-AC 201 PURPOSE AND APPLICABILITY
Env-AC 201.01 Purpose. The purpose of these rules is to set forth
the general procedures that will be used in the proceedings of the
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 201.02 Applicability.
(a) The provisions
of Env-AC 202 and Env-AC 203 shall apply to general proceedings and appeal
hearings held by the council.
(b) The provisions
of Env-AC 204 and Env-AC 205 shall apply to all appeals allowed by law to be
taken to the council.
(c) The provisions
of Env-AC 206 shall apply to any petition to amend, adopt, or repeal a rule
submitted to the council pursuant to RSA 541-A:4 and to any rulemaking
proceeding initiated by the council.
(d) The provisions
of Env-AC 207 shall apply to any petition for a declaratory ruling as defined
by RSA 541-A:1, V.
(e) The provisions
of Env-AC 208 shall apply to any request for an explanation of council rules.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
PART Env-AC 202 DEFINITIONS
Env-AC 202.01
“Appeals clerk” means the individual designated by the commissioner of
the department pursuant to RSA 21-O:3, VIII as support staff for appeals to the
council.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.02
“Appellant” means the person who initiates an appeal by filing a notice
of appeal in accordance with Env-AC 204.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.03 “Council”
means the air resources council established by RSA 21-O:11.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.04
“Council clerk” means the individual designated by the commissioner of
the department pursuant to RSA 21-O:3, VIII as clerical support staff to the
council for all matters other than appeals.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.05
“Department” means the department of environmental services.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.06
“Director” means the director of the air resources division of the
department of environmental services.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.07 “General
proceedings” means council business other than appeals.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 202.08
“Intervenor” means a person allowed by the council to intervene in an
appeal proceeding pursuant to RSA 541-A:32.
Source. #8267-A,
eff 1-25-05
Env-AC 202.09 “Meeting” means a gathering
of a quorum of council members, at which general proceedings or appeals or both
may be conducted.
Source. #8267-A,
eff 1-25-05
Env-AC 202.10
“Person” means:
(a) For the purpose
of general proceedings, any individual, partnership, joint venture,
association, corporation, trust, private or municipal corporation, and any
political subdivision or agency of the state or the United States; or
(b) For the purpose
of an appeal of a decision under a specific statute, “person” as defined by
that statute.
Source. #8267-A,
eff 1-25-05
Env-AC 202.11
“Sitting member” means an individual who has been appointed to the
council and to whom the oath of office has been administered, and includes any
member of the council whose term has expired until such time as a replacement
is appointed, but does not include any member who has resigned from the
council, regardless of whether a replacement has been appointed.
Source. #8267-A,
eff 1-25-05
PART Env-AC 203 GENERAL PROCEDURES
Env-AC 203.01 Quorum.
(a) A quorum of the
council shall be a simple majority of the total number of sitting members,
provided, however, that in the context of an appeal proceeding, a quorum shall
be a simple majority of those sitting members who have not recused themselves
from the proceeding.
(b) The council
shall take formal or official action only when a quorum is present.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC
203.02 Place of Meetings.
(a) All regular meetings of the council shall be
held in
(b)
Special meetings, including meetings held to inform the public or
solicit public comments, shall be held in
Source. #8267-A,
eff 1-25-05
Env-AC
203.03 Scheduling Meetings.
(a) Regular meetings of the council shall be held
at least quarterly.
(b)
Special meetings shall be those which are other than quarterly meetings
and shall be held at the call of the chairman or of 3 council members.
Source. #8267-A,
eff 1-25-05
Env-AC
203.04 Notice of Meetings. Notice of meetings shall be publicized as
required by RSA 91-A, Access to Public Records.
The notice shall contain the time, date and place of meeting and the
scheduled agenda for the meeting. The
council clerk shall maintain a record demonstrating that all statutory notice
requirements have been met.
Source. #8267-A,
eff 1-25-05
Env-AC
203.05 Record of Meetings. A record of all regular and special meetings
of the council shall be kept by tape recording.
Minutes of the meeting shall be prepared by the council clerk and
distributed to the council members.
Source. #8267-A,
eff 1-25-05
Env-AC
203.06 Presiding Officer.
(a) The presiding officer for general proceedings
or for an appeal shall be the chairman of the council if present and willing to
preside. If the chairman is unavailable
for any reason, the presiding officer shall be the vice-chairman, if available,
or a member of the council selected by those members present at the meeting.
(b) The presiding officer at a prehearing
conference shall be the chairman of the council or the council member who is
designated to preside by the chairman.
(c) The presiding officer for general proceedings shall regulate
the course of the proceedings and take such other action that is necessary for the
efficient and orderly conduct of the proceedings, consistent with these rules and
any other applicable state law.
(d) Unless otherwise provided, the presiding
officer at an appeal hearing or prehearing conference shall:
(1) Rule on
issues of evidence;
(2) Regulate
the course of the proceeding;
(3) Rule upon
issues of procedure;
(4) Administer
oaths or affirmations; and
(5) Take such other
action that is necessary for the efficient and orderly conduct of the
proceeding, consistent with these rules and any other applicable state law.
(e) Exceptions to rulings of the presiding
officer in an appeal shall be considered to have been preserved if a
contemporaneous oral or written objection is made on the record of the appeal.
(f) Objections to procedural rulings by the
presiding officer in an appeal may be included in a party’s proposed
conclusions of law or in a petition for reconsideration.
Source. #8267-A,
eff 1-25-05
Env-AC
203.07 Withdrawal of Presiding
Officer.
(a) Upon individual initiative or upon the motion
or request of any party, a presiding officer shall, for good cause or to avoid
the appearance of impropriety or lack of impartiality, withdraw from serving as
presiding officer for that appeal.
(b) For purposes of this section, good cause
means evidence of any fact that would cause a reasonable person to conclude
that the presiding officer cannot be impartial.
Source. #8267-A,
eff 1-25-05
Env-AC
203.08 Computation of Time.
(a) Any time period referenced in these rules
shall be calendar days unless otherwise specified.
(b) Computation of any period of time referred to
in these rules shall begin with the first day following the day on which the
act or other occurrence which initiates such period of time occurs, and shall
include the last day of the period so computed.
(c) If the last day of the period so computed
falls on a Saturday, Sunday or state legal holiday, then the time shall be
extended to include the first business day following the Saturday, Sunday or
state legal holiday.
Source. #8267-A,
eff 1-25-05
Env-AC
203.09 Filing of Documents.
(a) Any document required to be filed with the
council other than correspondence relating to an appeal shall be filed by
mailing or delivering the original to the following address:
Air Resources Council
c/o DES, Air Resources Division
ATTN: ARC Council
(b) Any document required or allowed by these
rules to be filed in conjunction with an appeal shall be filed by mailing or delivering
the original and 15 copies of the document to the appeals clerk at the
following address:
Air Resources Council
Attn: Appeals
c/o DES Legal Unit
Source. #8267-A,
eff 1-25-05
Env-AC
203.10 Signatures.
(a) Every document filed with the council that is
not related to an appeal shall be signed by the individual submitting the
document or, if the document is filed on behalf of an entity, by a
duly-authorized representative of the entity.
(b) Every document filed with the council that
relates to an appeal, including any notice of appeal, petition, motion,
objection, brief, or other document but not including exhibits submitted at a
hearing, shall be signed and dated by the filing party or by the representative
of the filing party who has filed an appearance in accordance with Env-AC
204.07.
(c) The signature on a document filed with the
council shall constitute a certification that:
(1) The signer
has read the document;
(2) The signer
is authorized to file it;
(3) To the best
of the signer’s knowledge, information, and belief, there are good grounds to
support it; and
(4) The
document has not been filed for purposes of delay or harassment.
Source. #8267-A,
eff 1-25-05
Env-AC
203.11 Issuance or Filing of
Documents.
(a) All orders, decisions, notices, or other
written correspondence or documents issued by or at the direction of the
council shall be deemed to have been issued on the date noted on the document.
(b) All written correspondence or documents
issued by or at the direction of the council that are sent to the addressee’s
last address of record shall be presumed to have been received by the addressee.
(c) All written documents governed by these
rules, including but not limited to notices of appeal, requests for findings or
conclusions, correspondence, and motions shall be deemed to have been filed
with or received by the council on the actual date of receipt by:
(1) The council
clerk, for items that do not relate to an appeal; or
(2) The appeals
clerk, for items that do relate to an appeal.
Source. #8267-A,
eff 1-25-05
Env-AC
203.12 Communications with the
Council.
(a) All communications with the council shall be
filed in accordance with Env-AC 203.09 and shall identify the name and address
of the communicator and the subject matter of the communication.
(b) No person shall submit any documents or
exhibits or otherwise communicate any information which pertains either
directly or indirectly to the subject matter of a pending appeal directly to
any member of the council, other than at a hearing or prehearing conference for
which all parties have been given notice in accordance with these rules.
(c) Any member of the council who receives any
direct communication from any person which pertains directly or indirectly to
the subject matter of a pending appeal shall, at the next council meeting,
inform the council on the record of the improper communication and submit a
copy of the same, or, if the communication was made orally, relate the
substance of the communication to the council on the record.
(d) No information shall be considered as
evidence or made part of the record of an appeal before the council unless the
information is introduced as evidence in accordance with Env-AC 205.
Source. #8267-A,
eff 1-25-05
Env-AC
203.13 Appearance Before the Council.
(a) Any person may request the opportunity to
present information to the council as part of general proceedings.
(b) If made in advance of a council meeting, the
request shall be filed in writing in accordance with Env-AC 203.09(a).
(c) If made at a council meeting, the request may
be made in writing or orally on the record.
(d) The request shall include:
(1) The name of
the individual who wishes to present the information;
(2) The name of
the person represented by the individual, if any;
(3) The subject
of the information; and
(4) The length
of time needed to present the information.
(e) The council shall allow the individual to
present the information as part of general proceedings if the council
determines that:
(1) The
information does not relate to a matter that is the subject of a pending appeal
or for which the time in which to file an appeal has not expired;
(2) The information
relates to a subject over which the council has statutory jurisdiction; and
(3) Allowing
the information to be presented will not unduly prolong or otherwise
unreasonably interfere with the conduct of the meeting.
(f) If the council grants the request to provide
information, the council shall inform the individual of the date and time at
which the information can be presented.
Source. #8267-A,
eff 1-25-05
Env-AC
203.14 Recess and Adjournment. The council shall, from time to time, recess
or adjourn any meeting as might be necessary for the orderly conduct of the meeting on
its own initiative or at the request of:
(a) Any person scheduled to present information
as part of general proceedings; or
(b) Any party to an appeal.
Source. #8267-A,
eff 1-25-05
Env-AC
203.15 Waiver of Rules. Any person may request the council to waive,
for good cause, the application of any of these rules not mandated or required
by any
Source. #8267-A,
eff 1-25-05
PART Env-AC 204 APPEALS: FILING; NOTICE; PARTIES AND
REPRESENTATIVES; SCHEDULING; MOTIONS
Env-AC 204.01 Time for Filing of Appeals.
(a) Subject to (b),
below, pursuant to RSA 125-C:15, I, any appeal of an order shall be filed no
later than 30 days after the date of issuance of such order.
(b) Pursuant to RSA
125-C:15, I-a, any appeal of an order relating to a Stage II vapor recovery
requirement shall be filed no later than 10 days after the date of issuance of
such order.
(c) Pursuant to RSA 125-C:12,
III, any appeal of a decision to grant or deny a permit shall be filed no later
than 10 days after the date of issuance of the decision.
(d) Any appeal of a
decision to grant or deny a variance pursuant to RSA 125-C:16 shall be filed no
later than 30 days after the date of issuance of the decision.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 204.02 Notice
of Appeal.
(a) An appeal shall
be commenced by filing a notice of appeal as specified by this section with the
council.
(b) A notice of
appeal shall include the following:
(1) For each appellant, the appellant’s full
legal name, mailing address, and daytime telephone number and, if available, a
fax number and e-mail address;
(2) If the notice of appeal is being filed by the
appellant’s representative, the representative’s name, mailing address, and
daytime telephone number and, if available, a fax number and e-mail address;
(3) If the notice of appeal is being filed by a
group of appellants, the group representative’s name, mailing address, and
daytime telephone number and, if available, a fax number and e-mail address;
(4) A citation to the statutory provision(s) that
authorize(s) the council to hear the appeal;
(5) A clear and concise statement as to why the
appellant has standing to bring the appeal which shows why the appellant will
suffer a direct and adverse affect or injury in fact
as a result of the decision being appealed in a way that is actual and imminent
and is particularized to the appellant and that is more than any impact of
the decision on the general public. If the appellant is a group, its statement
shall include information showing that at least one of its members possesses
standing;
(6) A clear and concise statement of the:
a. Relief sought;
b. Facts upon which the council is expected to
rely in granting relief; and
c. Law which supports the requested relief;
(7) A copy of the decision or order which is
being appealed; and
(8) Notice of and support for a request for
expedited review, if one is being made pursuant to Env-AC 204.14.
(c) A notice of
appeal may also include such other information as the appellant deems pertinent
and relevant, including attachments of exhibits, illustrations, and sworn
written testimony if needed to support factual allegations in the petition.
(d) The appeals
clerk shall provide a copy of the notice of appeal to the director and to the
commissioner of the department.
(e) If the appeal
relates to the issuance of a permit and the appellant is not the permit holder,
the appellant shall serve a copy of the notice of appeal on the permit holder
in accordance with Env-AC 204.09.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 204.03 Determination
of Sufficiency of Notice of Appeal.
(a) Upon receipt of
a document filed as a notice of appeal, the appeals clerk shall assign a docket
number to the document and review the document for compliance with the
requirements of Env-AC 204.01 and Env-AC 204.02(b).
(b) If the document
appears to comply with the requirements of Env-AC 204.01 and Env-AC 204.02(b),
the appeals clerk shall distribute a copy of the notice of appeal to the
council.
(c) If the document was
not filed within the applicable time limit as specified in Env-AC 204.01, the
appeals clerk shall distribute a copy of the document to the council with a
statement that the appeal was not timely filed.
(d) If the document
was timely filed but does not appear to comply with the requirements of Env-AC
204.02(b), the appeals clerk shall:
(1) Send a written notice to the person who filed
the document to inform the person that:
a. The document does not meet the requirements
of Env-AC 204.02(b); and
b. If the person wishes to pursue the appeal,
the person has 30 days in which to file a document that meets the requirements
of Env-AC 204.02(b); and
(2) Provide a copy of the written notice and the
document to the council.
(e) After the expiration
of the 30-day period referred to in (d)(1)b., above, the appeals clerk shall:
(1) Provide the council with a copy of any
document received from the person; or
(2) If no document was received, so inform the
council at the first council meeting following the end of the 30-day period.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 204.04 Identification
of Documents. Subsequent to the
filing of a notice of appeal, the docket number assigned by the appeals clerk
pursuant to Env-AC 204.03(a) shall be used by all parties to identify all
correspondence and other documents submitted to the council relating to the
appeal, including any written testimony or exhibits used at a hearing.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 204.05 Intervenors.
(a) A request to
intervene in an appeal shall be filed in accordance with RSA 541-A:32, I and
Env-AC 203.09(b).
(b) The council, or,
if an expedited review has been requested, the presiding officer, shall consider
and grant or deny all petitions for intervenor status in accordance with the
provisions of RSA 541-A:32.
(c) The order issued pursuant to
RSA 541-A:32, V shall specify the extent to which the intervenor shall be
considered a party for purposes of these rules.
(d) Once granted
leave to intervene, an intervenor shall take the proceeding as he or she finds
it and no portion of the proceeding shall be repeated because of the fact of
intervention.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC
204.06 Parties.
(a) The parties to an appeal of an administrative
order shall be:
(1) The person
to whom the order was issued;
(2) The department;
and
(3) Any person
allowed by the council to intervene.
(b) The parties to an appeal of the denial of a
permit application shall be:
(1) The person
who filed the permit application;
(2) The
department; and
(3) Any person allowed
by the council to intervene.
(c) The parties to an appeal of the issuance of a
permit shall be:
(1) The person
who filed the appeal;
(2) The
department;
(3) The permit
holder, if not the appellant; and
(4) Any person
allowed by the council to intervene.
(d) The parties to an appeal of a decision to
grant a variance pursuant to RSA 125-C:16 shall be:
(1) The person
who filed the appeal;
(2) The
department;
(3) The person
who received the variance, if not the appellant; and
(4) Any person
allowed by the council to intervene.
(e) The parties to an appeal of a decision to
deny a variance pursuant to RSA 125-C:16 shall be:
(1) The person
who requested the variance;
(2) The
department; and
(3) Any person
allowed by the council to intervene.
Source. #8267-A,
eff 1-25-05
Env-AC
204.07 Representation and Appearances.
(a) Any party to an appeal before the council may
be represented by an attorney or such other individual as the party may
designate. This provision shall not be
construed to permit the unauthorized practice of law as defined by the
(b) Each party’s representative shall file an
appearance with the appeals clerk which identifies the party being represented,
the representative’s name, mailing address, and daytime telephone number and,
if available, a fax number and e-mail address.
If the representative files the original notice of appeal which includes
the information specified by this paragraph, a separate appearance shall not be
required.
(c) All representatives shall obtain and become
familiar with these procedural rules prior to appearing before the council.
(d) For each appeal, the department shall
designate a representative for purposes of that appeal. The designated representative shall file an
appearance pursuant to (b), above.
(e) Each party and representative shall update
the contact information filed pursuant to this section as necessary to reflect
current information.
Source. #8267-A,
eff 1-25-05
Env-AC
204.08 Removal of Representatives.
(a) Upon making a finding of misconduct on the
part of any representative appearing before the council, the council shall
prohibit that individual from acting as a representative for the pending
matter.
(b) For purposes of this section, misconduct
means:
(1) Behavior
that is disruptive to the orderly conduct of the appeal; or
(2) A
consistent or recurring failure to:
a. Meet
deadlines;
b. Comply with
the provisions of Env-AC 200; or
c. Provide
information that has been requested by the council or by other parties, unless
the representative believes in good faith that the information is protected by
law from disclosure.
(c) Prior to making a finding of misconduct so as
to warrant the imposition of such prohibition, the council shall:
(1) Inform the
representative, the party represented by the representative, and all other
parties and their representatives, if any, to the proceeding of the proposed
prohibition; and
(2) Provide an
opportunity for the representative, the party represented by the
representative, and all other parties and their representatives, if any, to the
proceeding to address the council regarding why the prohibition should or
should not be imposed.
Source. #8267-A,
eff 1-25-05
Env-AC 204.09 Service
List; Service of Documents.
(a) For each appeal, the appeals clerk shall
maintain a service list that identifies:
(1) Each party
or, if the party is represented and the representative filed the notice of
appeal or has otherwise filed an appearance, the party’s representative;
(2) Each person
who has filed a motion to intervene that has not yet been ruled on by the
council; and
(3) The mailing
address, daytime telephone number, and, if available, fax number and e-mail
address of each person identified in (1) and (2), above.
(b) The appeals clerk shall provide a copy of the
service list to any person upon request.
(c) Any person who files an appeal-related
document with the council shall serve a copy of the document on each person
identified on the service list.
(d) Service as required by (c), above, shall be
made:
(1) By first
class mail, postage prepaid, or by delivery in hand;
(2) On or
before the date of filing of the original document with the appeals clerk; and
(3) On the
representative of a party for whom a representative has filed an appearance,
provided however that timely service inadvertently made on a party for whom a
representative has filed an appearance shall be sufficient regardless of
whether the party’s representative also was served.
(e) Except for exhibits distributed at a
prehearing conference or hearing, every document required to be served upon the
parties to an appeal shall be accompanied by a certificate of service, signed
by the person making service, attesting to the method and date of service and
the person(s) served.
(f) If time is of the essence in a filing and
service will be made by mail, the person filing the document shall send a copy
of the document by fax or e-mail to all other parties for whom a fax number or
e-mail address is available, and shall notify any party for whom a fax number
or e-mail address is not available of the filing by telephone.
Source. #8267-A,
eff 1-25-05
Env-AC
204.10 Scheduling.
(a) The council shall schedule an appeal hearing
no later than the second regularly-scheduled council meeting following receipt
by the council of a complete notice of appeal that complies with Env-AC
204.02(b).
(b) Except in the case of an appeal of a permit
issued pursuant to Title V of the Clean Air Act, 42 U.S.C. 7001 et. seq., once
a hearing has been scheduled, the appeals clerk shall send a written notice to
the parties or, as applicable, their representatives, and to all other persons
who have filed an appearance with the appeals clerk. The notice shall contain the information
required by RSA 541-A:31, III.
(c) In the case of an appeal of a permit issued
pursuant to Title V of the Clean Air Act, the appeals clerk shall send a written
notice containing the information required by RSA 541-A:31, III to the parties
or, as applicable, their representatives and shall cause notice of such hearing
to be published in a newspaper with statewide circulation no less than 30 days
prior to such hearing.
(d) If the hearing is rescheduled, the appeals
clerk shall send a notice of the date, time, and place of the rescheduled
hearing to the parties or their representatives, as applicable.
Source. #8267-A,
eff 1-25-05
Env-AC
204.11 Calendar of Hearings. The appeals clerk shall maintain a record of
all appeals pending before the council.
Source. #8267-A,
eff 1-25-05
Env-AC
204.12 Extensions of Time.
(a) Any party to an appeal may petition the
council to extend any time limit established by Env-AC 200 in accordance with
this section, excluding time limits or deadlines established by statute.
(b)
Prior to filing an extension request, the party shall seek concurrence
with the request from all other parties to the appeal.
(c) A request for an extension shall be in writing
and shall be filed in accordance with Env-AC 203.09(b) at least 10 business
days prior to the expiration of the prescribed period.
(d) The request shall state the reason(s) for the
extension request and whether the other parties to the appeal agree or disagree
with the request or did not respond to the request for concurrence.
(e) A copy of the request shall be served in
accordance with Env-AC 204.09. If the
request is filed within 20 days of the expiration of the prescribed period, the
party filing the request shall implement the procedure specified in Env-AC
204.09(f).
(f) Any party who did not concur with the request
may object to the request by filing a written objection with the council within
5 business days of receipt of the request, stating the reasons why the request
should not be granted.
(g) The council shall grant the request if the
council determines that the delay will not prejudice the interests of any party
to the appeal and:
(1) Meeting the
prescribed time limit would unduly burden the party making the request; or
(2) An
extension is otherwise necessary to conduct a more effective hearing.
(h) The council shall, in a timely manner, render
a decision with respect to the request for extension and notify all parties in
writing of its decision.
Source. #8267-A,
eff 1-25-05
Env-AC
204.13 Continuances.
(a) Any party may request that a hearing
conducted pursuant to this part be continued for reasonable cause and
reconvened or rescheduled.
(b)
Prior to filing a request for a continuance of a hearing made in advance
of the hearing, the party seeking the continuance shall seek concurrence with
the request from all other parties to the appeal.
(c)
A request for a continuance made in advance of a hearing shall:
(1) Be in writing;
(2) State the reason(s) for the request;
(3) Be filed at least 5 business days prior to
the scheduled hearing date; and
(4) State whether the other parties to the appeal
agree or disagree with the request or did not respond to the request for
concurrence.
(d)
A request for continuance made at a hearing may be made orally provided
it is entered in the record of the hearing.
(e)
The council shall grant the request if the council determines that
reasonable cause exists and that no other party will be prejudiced by the
delay.
(f)
For purposes of this section, reasonable cause shall include, but not be
limited to:
(1) Unavailability of an individual party, a
representative, or critical witness;
(2) The parties believe that an informal resolution
is possible and need more time to resolve the matter; or
(3) One or more of the parties are awaiting
information, reports, data, or a related court decision which is material to
the appeal.
(g)
The council shall deny the request if the council determines that the
request is not supported by reasonable cause.
(h)
Grounds for determining that the request is not supported by reasonable
cause shall
include, but shall
not be
limited to:
(1) An individual party, representative, or
critical witness is chronically unavailable;
(2) No progress towards a settlement has been
demonstrated by the parties; or
(3) There have been repeated or unreasonable delays
in obtaining information, reports, data, or a related court decision which is
material to the appeal.
(i) All orders for continuance shall specify the
time and place at which such hearing shall be reconvened. The presiding officer shall notify the
parties and the public, if applicable, in such a manner as is appropriate to
insure that reasonable notice shall be given of the time and place of such
continued hearing.
Source. #8267-A,
eff 1-25-05
Env-AC 204.14
Expedited Review of Appeals.
(a) Any party may request the council to provide
an expedited review of an appeal.
(b) If the request for expedited review is filed after
the notice of appeal has been filed, the party wishing to file the request
shall seek concurrence with the request from all other parties to the appeal
prior to filing the request.
(c) The request for an expedited review shall
include the following:
(1) The docket number
assigned to the appeal, unless the request is part of the notice of appeal;
(2) The date on which the notice of appeal was or
is being filed with the council;
(3) The reason(s) why the expedited review is
being sought; and
(4) If
the request is being filed after the notice of appeal was filed, a statement
that the other parties to the appeal agree or disagree with the request or did
not respond to the request for concurrence.
(d) If not included in the notice of appeal, the
party shall file the request for an expedited review in accordance with Env-AC
203.09(b) at least 10 business days prior to the next scheduled council
meeting.
(e) The presiding officer shall review the
request and determine whether to grant the request.
(f) The presiding officer shall grant the request
for an expedited review if the presiding officer determines that the expedited
review will not unduly burden the opposing party and:
(1) There is an
imminent and substantial threat to public health or the environment that will
remain unaddressed until the appeal is resolved; or
(2) The party will suffer an economic hardship if
the appeal is not promptly resolved.
(g) If the presiding officer grants the request,
the presiding officer shall direct the appeals clerk to schedule the appeal
hearing for the next scheduled council meeting.
Source. #8267-A,
eff 1-25-05
Env-AC
204.15 Motions and
Objections Thereto.
(a) Any party may file a written motion or make
an oral motion in accordance with this section.
(b) Prior to filing a written motion, the party
shall seek concurrence with the relief requested in the motion from all other
parties to the appeal, provided however that if the motion would result in a
ruling that is adverse to another party’s interests, the moving party shall not
be required to seek concurrence from that party.
(c) All motions shall be in written form unless
the nature of the relief requested requires that the motion be made
spontaneously in the context of an oral proceeding. Written motions shall be included in the
record of the appeal. Oral motions shall
be recorded in full on the tape recording of the hearing.
(d) A motion shall include:
(1) The
specific relief or ruling being requested;
(2) A clear and
concise statement of the facts and law which support the motion; and
(3) A statement that the other parties to the
appeal agree or disagree with the motion or did not respond to the request for
concurrence.
(e)
All parties who would be adversely affected by the ruling sought in a
motion shall have an opportunity to respond to the motion. For a written motion, responses shall be in
writing an shall be filed no later than 5 days after receipt of the
motion. For an oral motion, responses
shall be made during the hearing at which the oral motion was made unless the
presiding officer determines, based on the nature of the motion, that it is
appropriate to grant additional time to prepare a response to the motion.
(f) Repetitious motions shall not be submitted.
Source. #8267-A,
eff 1-25-05
Env-AC
204.16 Withdrawal of Appeal.
(a) The
appellant may withdraw the appeal at any time prior to a final decision being
made by the council.
(b) To withdraw the appeal, the appellant shall
submit a written notice of withdrawal to the appeals clerk stating that the
appeal is being withdrawn and shall serve a copy on all other parties to the
appeal pursuant to Env-AC 204.09. If the
appeal was resolved by a settlement, the appellant shall attach a copy of the
settlement to the notice of withdrawal.
Source. #8267-A,
eff 1-25-05
PART Env-AC 205 APPEALS:
PREHEARINGS; HEARINGS
Env-AC 205.01 Settlement
Discussions; Pre-Hearing Conferences.
(a) After receiving a notice of appeal, the department’s
designated representative shall contact the appellant and all other
parties to the appeal to offer the opportunity to meet to determine whether the
matter can be resolved without the need for a formal hearing. If the parties meet and agree to a resolution
of the matter, then the appellant shall withdraw the appeal in accordance with
Env-AC 204.16.
(b) If the parties
agree to meet but cannot schedule time to do so prior to the council meeting
for which the hearing has been scheduled, the department’s representative shall
inform the appeals clerk and the hearing shall be rescheduled for the following
council meeting.
(c) Nothing herein
shall preclude any party or the council from requesting a prehearing conference
in accordance with RSA 541-A:31, V, in lieu of or in addition to a discussion scheduled
or held pursuant to (a), above.
(d) If a formal
prehearing conference is held, the parties shall be prepared to discuss the
issues identified in RSA 541-A:31, V(c).
(e) The council
shall cause prehearing conferences to be recorded unless all parties consent to
discuss possible settlement off the record.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 205.02 Supplemental Materials. Memoranda, briefs, and other written
materials designed to supplement a notice of appeal shall be filed in
accordance with Env-AC 203.09(b) and shall be served in accordance with Env-AC
204.09 at least 10 business days prior to the scheduled hearing on the appeal.
Source. #8267-A,
eff 1-25-05
Env-AC 205.03 Pre-hearing
Exchange of Information.
(a)
More than one week prior to the commencement of a hearing, the parties
shall exchange the following:
(1) A list identifying each witness expected to
be called at the hearing with a brief description of that witness’s testimony;
(2) A list of all exhibits expected to be presented
at the hearing; and
(3) Any requests for changes to or waivers of the
standard procedures as specified in these rules or other matters concerning the
conduct of the hearing.
(b)
If a party wishes to obtain information other than that specified in
(a), above, from another party, the requesting party shall request the
information in writing and shall file a copy of the request with the appeals
clerk and serve a copy on the party from whom the information is sought.
(c)
Requests pursuant to (b), above, shall be limited to information
directly related to the matter for which the hearing will be conducted.
(d)
A party receiving a request for information pursuant to (b), above,
shall respond to the request within 10 days by:
(1) Providing the information requested;
(2) Explaining why the information will not be
provided; or
(3) Identifying a date and time when the
information can be made available for inspection, which date and time shall be
sufficiently in advance of the hearing on the matter that the information can
be reasonably reviewed prior to the hearing.
(e)
A party who has received a request for information pursuant to (b),
above, may decline to provide information which the party believes is:
(1) Confidential;
(2) Privileged;
(3) Not directly related to the matter at hand;
or
(4) Excessively burdensome to produce.
(f)
If a party declines to provide information pursuant to (e), above, the
explanation provided pursuant to (d)(2), above, shall include a detailed
explanation of the reason(s) why the information is not being provided.
(g)
A party who has requested information pursuant to (b), above, that is
not provided may request the presiding officer to require the party of whom the
information was requested to provide the information. Such requests shall be in the form of a
written motion and shall be filed and handled in accordance with Env-AC 204.15.
(h)
The party shall file a motion pursuant to (g), above, within 7 days of
receiving the denial of the information under (e), above, but no later than 5
days prior to the scheduled hearing. No
motion shall be accepted within 5 days before a scheduled hearing unless the
presiding officer determines that good cause exists for the late filing. For purposes of this paragraph, “good cause”
means that the party requesting the information did not discover the existence
of the information in time to request the information, receive the denial, and
file a timely motion and could not have discovered the existence of the
information with reasonable diligence.
(i) The presiding officer shall grant a motion
filed pursuant to (h), above, if the presiding officer determines that:
(1) The information is directly related to the
matter at hand such that the requesting party will be materially prejudiced in
the case by the lack of the requested information; and
(2) The information is not confidential,
privileged, or excessively burdensome to produce.
(j)
If the presiding officer grants the motion and the party asked to
provide the information fails or refuses to provide it, the presiding officer
shall:
(1) Delay the hearing until the information is
provided;
(2) Rule that such information shall not be
admissible at the hearing on the matter or in any subsequent proceeding on the
matter, unless the information is already a matter of public record; or
(3) Refer the matter to the council for a
determination of whether the requesting party cannot reasonably present its
case without the requested information.
If the council finds that the requesting party cannot reasonably present
its case without the requested information, the council shall find in favor of
the requesting party on the matter(s) sought to be proved by the requested
information.
(k) For purposes of this section, in making a
determination of whether it would be excessively burdensome to produce
requested records, the presiding officer shall consider:
(1) The volume of records requested;
(2) The amount of time that would be needed to find,
organize, and copy the records; and
(3) The relevance of the requested records to the
subject matter of the appeal.
Source. #8267-A,
eff 1-25-05
Env-AC
205.04 Opening the Proceeding. The presiding officer at an appeal hearing or
prehearing conference shall open the proceeding by describing in general terms
the purpose of the proceeding and the general procedures governing its conduct.
Source. #8267-A,
eff 1-25-05
Env-AC
205.05 Hearing Record.
(a) The record of the hearing shall include:
(1) The notice(s) of the hearing;
(2) The tape recording of the hearing;
(3) All exhibits, motions, requests for findings
and conclusions, and other written materials submitted by the parties at or for
the hearing;
(4) Any other item(s) specified by RSA
541-A:31,VI; and
(5) All decisions of the presiding officer on
procedural matters and the decision of the council on the merits.
(b) Pursuant to RSA 541-A:31,VII and subject to
(c), below, the entirety of all oral proceedings shall be recorded. Upon request of a party, the council shall
provide, at cost, a duplicate tape of the hearing. Any person desiring a transcript of the
hearing prepared by a qualified stenographer shall provide the stenographer and
shall bear all expenses associated with the preparation of the transcript. Any transcript so prepared shall be made
available to the council for copying at the council’s expense.
(c) If the appeal relates to an order
constituting a disciplinary action against an occupational licensee, the
provisions of RSA 541-A:31, VII-a shall apply.
Source. #8267-A,
eff 1-25-05
Env-AC
205.06 Testimony.
(a) All testimony of witnesses shall be made
under oath or affirmation.
(b) Any individual testifying before the council
shall state for the record his or her name, address, and if a representative of
a party, the identity of the party so represented.
(c) Any individual testifying before the council
shall be subject to cross-examination as provided in (f) below.
(d) Whenever it appears that testimony to be
offered at the hearing would be more readily understood if presented in written
form, the presiding officer shall require the party offering such testimony to
submit the testimony in written form, provided such requirement will not
substantially prejudice the interests of any party to the hearing. Upon request of the party who has been
requested to submit written testimony, the presiding officer shall direct that
the record be held open after the close of the hearing or that the hearing be
continued to a later date for the sole purpose of allowing sufficient time to
prepare the written submission. All
persons offering testimony in written form shall be subject to cross-examination
as provided in (f) below.
(e) Unless otherwise agreed at a prehearing
conference, direct testimony shall be offered in the following order:
(1) The person who filed the notice of appeal and
such witnesses as the person may call;
(2) Any other non-state party and such witnesses
as the party may call; and
(3) The department, by such staff members and
other witnesses as the department may call.
(f) If the presiding officer, members of the
council, or legal counsel to the council have questions regarding a witness’s
testimony, the individual having the question shall cross-examine the witness
during or at the conclusion of the testimony of that witness, as allowed by the
presiding officer. The presiding officer
shall allow other parties or their representatives a reasonable opportunity to
cross-examine each witness.
Cross-examination shall be by asking questions directly of the witness,
so long as such direct questioning is not disruptive to the orderly conduct of
the hearing. If the presiding officer
determines that such cross-examination is disruptive to the orderly conduct of
the hearing, then the presiding officer shall require the cross-examination to
be conducted indirectly, by addressing questions to the witness through the
presiding officer.
Source. #8267-A,
eff 1-25-05
Env-AC
205.07 General Evidence.
(a) Pursuant to RSA 541-A:33, II, the rules of
evidence shall not apply.
(b) Evidence which is relevant and material to
the subject matter of the hearing shall be admissible. Evidence which is irrelevant, immaterial, or
unduly repetitious shall be excluded.
The experience, technical competence, and specialized knowledge of the
councilors shall, if relevant, be used in the evaluation of all evidence
submitted to the council.
(c) Whenever necessary for a full and fair
consideration of the appeal, the presiding officer shall take official notice
of any information specified in RSA 541-A:33, V. The final decision of the council shall
specifically identify those facts of which official notice were taken.
(d) All documents, materials, and objects offered
in evidence as exhibits shall be marked by the offering party with the docket
number and shall, if accepted, be numbered or otherwise identified in a
sequential manner. Documentary evidence
shall be received in the form of copies or excerpts if the original is not readily
available. Any person offering any documentary
or photographic evidence shall provide each member of the council and each
party with a copy of such documents or photographs, unless such documents or
photographs are determined by the presiding officer to be of such form, size or
character as not to be reasonably suitable for reproduction.
(e) All written testimony and documents,
materials, and objects admitted into evidence shall be made available during
the course of the hearing for public examination. Following the hearing, all such evidence
shall be available at the department’s offices in
(f) In any proceeding involving an application
for a permit or other approval, the application filed with the department, including
all supplemental information including but not limited to maps, plans, and
specifications, and any amendments to the application or supplemental
information, shall be placed into evidence by the department.
(g) All objections to rulings of the presiding
officer regarding evidence or procedure and the grounds for the objections
shall be timely stated during the course of the hearing. Nothing herein shall be construed as
independent authorization for interlocutory appeals of rulings of the presiding
officer.
(h) No information shall be considered as
evidence or made part of the record in any proceeding before the council that
is not introduced as evidence in accordance with this part.
Source. #8267-A,
eff 1-25-05
Env-AC
205.08 Exhibits.
(a) Where evidence to be presented consists of numerical
or graphic data and such evidence would make oral presentation difficult to
follow, such evidence shall be presented in exhibit form. Exhibits may be summarized, supplemented and
explained.
(b) Space shall be provided in the upper right
hand corner of each exhibit for the insertion of the number of the exhibit and
the name of the witness through whom it is presented.
(c) The party offering an exhibit shall supply
the original and 15 copies thereof to the council and shall provide a copy to all
other parties, unless exempted under Env-AC 205.07(d).
Source. #8267-A,
eff 1-25-05
Env-AC
205.09 Requests for Findings and
Conclusions. Any party may submit
requests for findings of fact and conclusions of law by the close of the record
as established under Env-AC 205.10.
Source. #8267-A,
eff 1-25-05
Env-AC
205.10 Close of the Record.
(a) After the conclusion of the hearing, no other
evidence, testimony or exhibits shall be allowed into the record, except as
allowed pursuant to (b) below.
(b) Prior to the conclusion of the hearing, a
party may request that the record be left open for a specified period of time
in which to file evidence or arguments not available at the hearing. If the
council determines that such material is necessary to a full consideration of
the issues raised in the appeal, the presiding officer shall set a date by which
the additional material shall be filed.
(c) The party filing such additional material
shall serve copies of all items filed in accordance with Env-AC 204.09.
(d) If any other party to the hearing requests
time to respond to the material submitted, the presiding officer shall set a
specific time period following filing of the material for the filing of a
response. If any other party to the
hearing requests the opportunity to cross-examine on the additional material
submitted, the presiding officer shall set a date and time for a hearing at
which cross-examination on the additional material submitted shall be allowed,
if the presiding officer determines that such cross-examination is required for
a full and true disclosure of the facts.
(e) The determination to allow cross-examination
shall be based on:
(1) The nature
of the factual and legal issues in dispute in the proceeding;
(2) The
testimony and evidence submitted during the hearing and any cross-examination
thereon; and
(3) The nature
of the additional evidence to be submitted.
Source. #8267-A,
eff 1-25-05
Env-AC
205.11 Reopening of the Record.
(a) At any time prior to a final decision on the
appeal, any party to a proceeding or any member of the council may request the
presiding officer to reopen the record to consider relevant, material, and
non-duplicative testimony, evidence, arguments, or exhibits not previously
considered.
(b) If the request is made after one or more
parties have left the hearing, the request shall be in writing and a copy of
the request shall be served in accordance with Env-AC 204.09.
(c) If the presiding officer determines that such
testimony, evidence, arguments, or exhibits are necessary to a full
consideration of the issues raised by the appeal, the record shall be reopened
to accept the offered items.
(d) The presiding officer shall give written
notice of the acceptance into the record of the offered items to all parties if
the parties are no longer present. The
presiding officer shall also set a time within which other parties may respond
to or rebut the items made part of the record.
Source. #8267-A,
eff 1-25-05
Env-AC
205.12 Failure to Appear. If any party to whom notice of a hearing has
been given in accordance with these rules fails to appear and fails to advise
the appeals clerk of such non-appearance in advance of the hearing, and the
council determines that delaying the hearing to a later date would cause undue
inconvenience or prejudice to the party or parties present, the council shall
hear the evidence and testimony of the parties present and shall render a
decision thereon, subject to the provisions of Env-AC 205.13.
Source. #8267-A,
eff 1-25-05
Env-AC
205.13 Reconvening of Hearings.
(a) If a hearing is held in a party’s absence
pursuant to Env-AC 205.12, the party may file a motion to reconvene the hearing
within 10 days after the date of the hearing.
(b) The motion shall:
(1) State the
reason(s) why the party was absent from the hearing;
(2) State why
the appeals clerk was not notified of the absence in advance of the hearing;
and
(3) Be
supported by affidavits or other evidence.
(c) If the council determines that good cause exists
to explain the party's failure to appear at the hearing and to explain the
party’s failure to notify the appeals clerk in advance of the hearing, the
council shall reconvene the hearing by scheduling another hearing. Good cause shall mean accident, sudden
illness, death of a family member or other circumstance beyond the control of
the party which prevents the party from attending the hearing and from
notifying the appeals clerk.
Source. #8267-A,
eff 1-25-05
Env-AC
205.14 Burden of Proof.
(a) The appellant shall bear the burden of
proving, by a preponderance of the evidence, that the decision that is being
appealed was:
(1) Contrary to
case law, statute or rules; or
(2) Arbitrary
and capricious.
(b) For motions, waiver requests, and other
non-dispositive matters, the party asserting the truth of a statement shall
have the burden of proving, by a preponderance of the evidence, that the
statement is true.
(c) For purposes of this section, proof by a
preponderance of the evidence means that what is sought to be proved is more
probable than not.
(d) Without limiting (a), above, all moving
parties and all petitioners shall have the burden of persuading the council
that their motion or petition should be granted.
Source. #8267-A,
eff 1-25-05
Env-AC
205.15 Decisions.
(a) Unless the appeal is withdrawn pursuant to
Env-AC 204.16, the council shall issue a final decision in writing in an appeal
affecting a permit issued pursuant to Title V of the Clean Air Act, as amended,
no later than 60 days following the close of the record.
(b) In all other appeals, the council shall issue
a final decision in writing unless the appeal is withdrawn pursuant to Env-AC
204.16. A final decision adverse to a
party in an appeal shall include findings of fact and conclusions of law
separately stated. Findings of fact
shall include a concise and explicit statement of the underlying facts
supporting the findings.
(c) If a party has submitted proposed findings of
fact, the decision shall include a ruling upon each proposed finding.
(d) The appeals clerk shall serve a copy of the
council’s decision on each party in accordance with Env-AC 204.09.
(e) The appeals clerk shall keep a copy of each
decision on file in the council’s public records for at least 5 years following
the date of the final decision or the date of the decision on any appeal,
unless the director of the division of archives and records management of the
department of state sets a longer retention period pursuant to rules adopted
under RSA 5:40.
Source. #8267-A,
eff 1-25-05
Env-AC
205.16 Motion for Reconsideration or
Rehearing.
(a) Any party whose rights are directly and
adversely affected by a decision of the council may file a motion for rehearing
with the council within 20 days of the date the written decision is
issued. No distinction shall be made
between the terms “reconsideration” and “rehearing.”
(b) A motion for rehearing shall set forth in
detail the following:
(1) The basis
of the moving party’s aggrievement;
(2) The
finding(s), conclusion(s), or condition(s) to which the moving party objects;
(3) The basis
for each objection;
(4) Whether the
moving party seeks to present new or additional evidence, and if so, the nature
of such evidence to be offered; and
(5) The nature
of the relief requested, such as whether the moving party is seeking a full
rehearing, clarification of a finding or ruling, or some other relief.
(c) New or additional evidence shall be accepted
when offered to:
(1) Cure any
deficiencies in the original notice of appeal or testimony;
(2) Correct
errors of form in the decision;
(3) Request
reconsideration of the conditions of the approval or of the denial; or
(4) Challenge
any facts of which official notice was taken.
(d) The council shall, at its first scheduled
meeting following the receipt of such a motion, grant or deny the motion, or
any part thereof, on its merits, or treat the motion as one for reopening and
grant it pending the receipt of such additional data or additional argument as
it considers necessary. Any hearing held
under this section shall be limited to the issues raised in the motion for
rehearing. The council shall provide
reasonable notice to the parties of any rehearing that is ordered.
(e) A council decision shall become final if no
motion for reconsideration is filed within the period specified in (a), above.
Source. #8267-A,
eff 1-25-05
PART Env-AC 206 RULEMAKING PETITIONS AND HEARINGS
Env-AC 206.01 Filing. Any person wishing to petition the council to
amend, adopt, or repeal a council rule shall file the original and one copy of
the petition with the council clerk as provided in Env-AC 203.09(a).
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 206.02 Form
and Content of Petition.
(a) A petition to
adopt, amend, or repeal a council rule shall be in writing and shall be signed
by the person who is seeking the ruling.
(b) A rulemaking
petition shall include the following:
(1) The name, mailing address, and daytime
telephone number of each person filing the petition and, if available, a fax
number and e-mail address for each such person;
(2) Whether the person is asking the council to
adopt, amend, or repeal a rule;
(3) If the petition is to adopt a rule:
a. The chapter, part, and section, by
alphanumeric code, where the person proposes the rule to be inserted; and
b. The language that the person wants to have
adopted as a rule;
(4) If the petition is to amend a rule:
a. The specific rule, by alphanumeric code, that
is the subject of the petition; and
b. The language that the person wants to have
adopted as a rule;
(5) If the petition is to repeal a rule, the
specific rule, by alphanumeric code, that is the subject of the petition; and
(6) A concise and explicit statement of why the
petitioner wants the council to undertake the action requested.
(c) A petition to
adopt, amend, or repeal a council rule may also include such other information
as the person filing the petition deems pertinent and relevant, and the person
may attach exhibits, illustrations and sworn written information to the
petition.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 206.03 Processing
of Rulemaking Petitions.
(a) Upon receipt of
a petition to adopt, amend, or repeal a council rule, the council clerk shall forward the
petition to the council.
(b) At its first
meeting following receipt of a petition to adopt, amend, or repeal a council rule, the council
shall review the petition and proceed in accordance with RSA 541-A:4, I.
(c) The petition
shall be granted and a rulemaking proceeding shall be initiated if the council
determines that the proposed action is:
(1) Consistent with state and federal law and
policy; and
(2) Necessary to secure the just, efficient, and
accurate resolution of council proceedings in accordance with recognized
principles of due process and the requirements of RSA 541-A.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 206.04 Public
Comment on Proposed Council Rules.
The council shall provide notice of and receive public comment on
proposed council rules as follows:
(a) The council
shall give notice of the proposed rulemaking in accordance with RSA 541-A:6;
(b) Any person
wishing to submit written comments shall file the comments as specified in the
notice of proposed rulemaking;
(c) A public hearing
shall be held during a meeting of the council and shall be identified on the
agenda for the meeting as a hearing to receive public comment on the proposed
council rules;
(d) The presiding
officer shall open the public hearing and shall ask any person wishing to
comment on the proposed council rules to identify himself or herself for the
record and to proceed with his/her comments;
(e) All comments
shall be recorded in full by tape recording or other method which will provide
a verbatim record of the hearing;
(f)
After all persons who wished to comment have done so, the presiding
officer shall close the public hearing on the proposed council rules;
(g) For rulemaking
hearings, the record shall remain open until the date specified in the notice
published in the Rulemaking Register; and
(h) Hearings on
proposed rules shall be continued or postponed only in accordance with RSA
541-A:11, III or IV, respectively.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
PART Env-AC 207 DECLARATORY RULINGS
Env-AC 207.01 Filing. Any person seeking a declaratory ruling from
the council shall file the original and one copy of a petition for declaratory
ruling with the council clerk at the address identified in Env-AC 203.09(a).
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 207.02 Form
and Content of Petition.
(a) A petition for a
declaratory ruling shall be in writing and shall be signed by the person who is
seeking the ruling.
(b) A petition for a
declaratory ruling shall include the following:
(1) The name, mailing address, and daytime
telephone number of each person requesting the declaratory ruling and, if
available, a fax number and e-mail address for each such person;
(2) A precise and complete citation to the
statute or administrative rule, or identifying information concerning the
order, upon which the petitioner seeks a ruling; and
(3) A concise and explicit statement explaining
the background, facts, and considerations which led to the petition in order
for the council to understand the nature and specific reasons for the petition
and why the ruling is being requested.
(c) A petition for a
declaratory ruling may also include such other information as the person filing
the petition deems pertinent and relevant, and the person may attach exhibits,
illustrations and sworn written information to the petition.
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
Env-AC 207.03 Processing
of Petitions for Declaratory Rulings.
(a) Upon receipt of
a petition for a declaratory ruling, the council clerk shall forward the
petition to the council.
(b) At its first meeting
following receipt of a petition for declaratory ruling, the council shall
review the petition to determine:
(1) Whether additional information or explanation
is needed; and
(2) Whether the complexity of the petition,
including but not limited to the issue in question and the legal implications
thereof, will cause the council to seek assistance from the department of
justice.
(c) The council
shall inform the petitioner in writing of the results of its review under (b),
above. If additional information or
explanation is needed, the council shall identify the needed information or
explanation and shall establish a deadline for the petitioner to provide the
information, which shall be no sooner than 20 days after the date of the
notice. If the council will be seeking
assistance from the department of justice, the council shall inform the
petitioner of the anticipated amount of time that will be needed to obtain such
assistance.
(d) If assistance
from the department of justice is not required, the council shall issue a
written response to the person filing the petition for declaratory ruling
within 30 days of the first council meeting following receipt of a complete
petition.
(e) If assistance
from the department of justice is required, the council shall issue a written
response to the person filing the petition for declaratory ruling within 30
days of the first council meeting following receipt of assistance from the
department of justice.
(f) Declaratory
rulings issued by the department shall be filed with the director of
legislative services in accordance with RSA 541-A:16, II(b).
Source. #6586, eff 9-23-97; ss by #8267-A, eff 1-25-05
PART Env-AC 208 EXPLANATION OF RULES
Env-AC 208.01 Explanation
of Rules.
(a) As specified in
RSA 541-A:11, VII, any interested person may, at any time before 30 days after final
adoption of a rule by the council, request the council to issue an explanation
of the rule that it has adopted.
(b) The request
shall be:
(1) In writing; and
(2) Filed in accordance with Env-AC 203.09(a).
(c) As specified in
RSA 541-A:11, VII, the explanation shall include:
(1) A concise statement of the principal reasons
for and against the adoption of the rule in its final form; and
(2) An explanation of why the council overruled
the arguments and considerations against the rule.
(d) The explanation
shall be issued within 30 days following the first council meeting after
receipt of the request.
Source. #6586, eff 9-23-97; ss by #8267-B, eff
1-25-05
Appendix
|
Rule |
Statute Rule is Intended to
Implement |
|
|
|
|
Env-AC 201 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA 541-A:31-36 |
|
Env-AC 202 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:7; RSA 541-A:16, I; RSA 541-A:30-a |
|
Env-AC 203
(Sections implementing specific statutes are listed below) |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA 541-A:31, 35, 36 |
|
Env-AC 203.06 |
RSA 541-A:30-a, III(f) |
|
Env-AC 203.09 – 203.10 |
RSA 541-A:30-a, III(a) |
|
Env-AC 203.12 |
RSA 541-A:36 |
|
Env-AC 203.13 |
RSA 541-A:30-a, III(b) |
|
Env-AC 203.15 |
RSA 541-A:30-a, III(j) |
|
Env-AC 204
(Sections implementing specific statutes are listed below) |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA 541-A:31, IV and 32 |
|
Env-AC 204.01-204.04 |
RSA 541-A:30-a, III(a) |
|
Env-AC 204.05 |
RSA 541-A:30-a, III(g) |
|
Env-AC 204.06-204.08 |
RSA 541-A:30-a, III(b) |
|
Env-AC 204.09 |
RSA 541-A:30-a, III(a) |
|
Env-AC 204.12 |
RSA 541-A:30-a, III(f), (j) |
|
Env-AC 204.13 |
RSA 541-A:30-a, III(h) |
|
Env-AC 205
(Sections implementing specific statutes are listed below) |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA 541-A:31, IV; RSA 541-A:31,V;
RSA 541-A:33, 38 |
|
Env-AC 205.01-205.03 |
RSA 541-A:30-a, III(c) |
|
Env-AC 205.09 |
RSA 541-A:35 |
|
Env-AC 205.11 |
RSA 541-A:30-a, III(i) |
|
Env-AC 205.14 |
RSA 541-A:30-a, III(d), (e) |
|
Env-AC 206 |
RSA 541-A:16, I |
|
Env-AC 207 |
RSA 541-A:16, I |
|
Env-AC 208 |
RSA 541-A:11, VII |