CHAPTER Env-WC 200
PROCEDURAL RULES
Statutory Authority: RSA 21-O:14, IV; RSA 541-A:16, I
REVISION NOTE:
Document
#5469, effective 9-17-92 readopted with amendments Chapter Env-WC 200, which
made extensive changes to the wording and numbering. The filings prior to Document #5469 are as
follows:
#4657,
effective 7-28-89
#5351,
effective 3-11-92
PART Env-WC 201
PURPOSE AND APPLICABILITY
Env-WC
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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
201.02 Applicability.
(a) The provisions of Env-WC 202 shall apply to
all proceedings of the council.
(b) The provisions of Env-WC 203 and Env-WC 204
shall apply to all appeals allowed by law to be taken to the council, other
than the following matters, since they are not allowed by law to be appealed to
the council:
(1) Pursuant to
RSA 21-O:14, I, any decision pertaining to rulemaking undertaken by the
department or declaratory rulings issued by the department as provided for in
RSA 541-A;
(2) Pursuant to
RSA 485-A:40, any approvals of plans or specifications pursuant to RSA
485-A:29-44, “Sewage Disposal Systems”;
(3) Pursuant to
RSA 485-A:50, VIII, any annual assessments levied against a municipality
pursuant to RSA 485-A:50; and
(4) Pursuant to
RSA 21-O:5-a, department decisions made pursuant to RSA 482-A.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
PART Env-WC 202
GENERAL PROCEDURES
Env-WC
202.01 Place of Meetings.
(a) All regular meetings of the council shall be
held at the department’s offices in
(b) Special meeting, including meetings held to
inform the public or solicit public comments, shall be held in
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC 202.02 Notice
of Meetings. Notice of council
meetings shall be publicized as required by RSA 91-A. The notice shall contain the time, date, and
place of the 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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
202.03 Record of Meetings. A record of all regular and special meetings
of the council shall be made by tape recording or other method that provides a
verbatim record. Minutes of the meeting
shall be prepared by the council clerk and distributed to the council members.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
202.04 Presiding Officer.
(a) The presiding officer at a meeting 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 hearing.
(b) The presiding officer at a meeting shall
regulate the course of the meeting and take such other action that is necessary
for the efficient and orderly conduct of the meeting, consistent with these
rules and any other applicable state law.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
202.05 Computation of Time.
(a) All time periods established or otherwise
referenced in these rules shall be calendar days unless otherwise specified.
(b) Computation of any period of time established
or otherwise referred to in these rules shall begin with the first day after
the triggering act or event and end at the department’s close of business on
the last day of the period.
(c) For time periods established in these rules,
if the last day of the period 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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 202.02)
Env-WC
202.06 Filing of Documents.
(a) Any correspondence filed with the council
other than correspondence relating to an appeal shall be filed by mailing or
delivering the original to the following address:
Water
Council
c/o DES,
Water Division
(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 20 copies of the document to the appeals clerk at
the following address:
Water
Council
Attn: Appeals Clerk
c/o DES
Legal Unit
(c) The original and one copy of any document
filed that relates to an appeal shall be printed only on one side of the page
and not stapled or otherwise permanently bound.
The remaining 19 copies of such documents may be double-sided and
stapled.
(d)
For purposes of this section, “filed by mailing or delivering in-hand”
includes delivery by private delivery service but
excludes submittals by telefacsimile (fax) or by electronic mail (e-mail).
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 202.03)
Env-WC
202.07 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, motion, petition, brief,
memorandum, or other document, but not including exhibits submitted at a
hearing, shall be signed by the participant who files the document or by the
representative of that participant who has filed an appearance in accordance
with Env-WC 203.06.
(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. #8977-A,
eff 9-14-07
Env-WC
202.08 Address Updates.
(a) Any participant in an appeal and any person
who has filed a motion for reconsideration shall maintain a current mailing
address and daytime telephone number and, if available, a fax number and e-mail address,
on file with the appeals clerk until completion of the matter.
(b) For purposes of this section, “completion of
the matter” means the later of:
(1) The
expiration of the time period allowed by law for appealing the subject
decision, if no appeal is filed within that time; or
(2) The date of
the final decision on the last appeal taken.
Source. #8977-A,
eff 9-14-07
Env-WC
202.09 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 by first class mail,
postage prepaid, to the addressee’s last address of record shall be presumed to have
been received by the addressee.
(c) All written documents not relating to an
appeal that are filed in accordance with Env-WC 202.06(a), shall be deemed to
have been received by the council on the actual date of receipt by the council
clerk.
(d) All written documents relating to an appeal
that are filed in accordance with Env-WC 202.06(b) shall be deemed to have been
received by the council on the actual date of receipt by the appeals clerk.
Source. #8977-A,
eff 9-14-07
Env-WC
202.10 Communications with the
Council.
(a) All communications with the council shall be filed
in accordance with Env-WC 202.06 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 that 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
participants have been given notice in accordance with these rules.
(c) Any member of the council who receives any
direct communication from any person that 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 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-WC 204.
Source. #8977-A,
eff 9-14-07 (from Env-WC 202.05)
Env-WC
202.11 Presentations to the Council.
(a) Any person may request the opportunity to present
information to the council.
(b) If made in advance of a council meeting, the
request shall be filed in writing in accordance with Env-WC 202.06.
(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 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. #8977-A,
eff 9-14-07
Env-WC
202.12 Recess and Adjournment. The council shall, from time to time, recess
or adjourn any meeting as might be necessary to 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 the council’s general proceedings; or
(b) Any participant in an appeal.
Source. #8977-A,
eff 9-14-07
Env-WC
202.13 Waiver of Rules.
(a) Any person may request the council to waive,
for good cause, the application of any of these rules not mandated or required
by any
(b) Requests made in an appeal proceeding shall be
made and processed as a motion in accordance with Env-WC 203.13.
(c) All other requests made in advance of a
meeting shall be in writing. Requests
made at a meeting may be made orally on the record. All requests shall state the basis for the
request.
(d) The council shall grant the request if it
determines that:
(1) The
requirement is not mandated by statute;
(2) Good cause
for the waiver exists; and
(3) No person
objects to the waiver or, if a person does object, the reason(s) for granting
the waiver outweigh the reason(s) for denying the waiver.
(e) For purposes of this section, good cause
shall be determined with reference to the specific rule for which a waiver is
sought. In determining whether good
cause exists to waive a rule, the council shall consider whether strict
adherence to the rule will cause hardship and whether waiving the rule will
prejudice the interests of any participant in an appeal or be detrimental to
the public interest.
Source. #8977-A,
eff 9-14-07
PART Env-WC 203
APPEALS: FILING; NOTICE; PARTICIPANTS AND REPRESENTATIVES; SCHEDULING;
MOTIONS
Env-WC
203.01 Appealing a Decision to the
Council. Any person wishing to appeal
a department decision allowed by law to be appealed to the council shall file a
notice of appeal as specified in Env-WC 203.02 within 30 days of the date the
decision being appealed was issued, as evidenced by the date on the decision.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
203.02 Notice of Appeal.
(a) 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 clear and
concise statement of the relief sought and the statutory provision under which
the relief is sought;
(5) A clear and
concise statement of the facts upon which the council is expected to rely in
granting relief;
(6) A clear and
concise statement as to why the appellant has standing to bring the appeal that
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; and
(7) A copy of
the decision or order that is being appealed.
(b) 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.
(c) The appellant shall provide a copy of the
notice of appeal to the director and to the commissioner of the department.
(d) 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-WC 203.08.
(e) If the appeal relates to the issuance or
denial of a permit and the statute or rules under which the permit was issued
or denied require the applicant to provide direct notification of the permit
application to any person, the appellant shall serve a copy of the notice of
appeal on all persons required by the program rules to receive such direct
notice.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.03)
Env-WC
203.03 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-WC 203.01 and
Env-WC 203.02(a).
(b) If the document appears to comply with the
requirements of Env-WC 203.01 and Env-WC 203.02(a), the appeals clerk shall
distribute a copy of the notice of appeal to the council.
(c) If the document was not filed within the time
limit established by Env-WC 203.01, 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-WC 203.02(a), 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-WC 203.02(a); 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-WC 203.02(a); and
(2) Provide a
copy of the written notice and the document to the council.
(d) After the expiration of the 30-day period,
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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff 6-9-07,
EXPIRES: 12-6-07; ss by #8977-A, eff
9-14-07
Env-WC
203.04 Identification of Documents. Subsequent to the filing of a notice of
appeal, the docket number assigned by the appeals clerk pursuant to Env-WC
203.03(a) shall be used by all participants 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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
203.05 Intervenors.
(a) A request to intervene in an appeal shall be
filed in accordance with RSA 541-A:32, I and Env-WC 202.06(b).
(b) The council 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 participate in the
proceeding.
(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. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.12)
Env-WC
203.06 Representation and Appearances.
(a) Any participant in an appeal before the
council may be represented by an attorney licensed to practice law in
(b) Each participant’s representative shall file
an appearance with the appeals clerk that identifies the participant being
represented and the representative’s name, mailing address, and daytime
telephone number and, if available, a fax number and e-mail address. If the original notice of appeal was filed by
the representative and 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 participant and representative shall
update the contact information filed pursuant to this section as necessary to
reflect current information.
Source. (See Revision Note at chapter heading Env-WC 200)
#5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
203.07 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 before the council 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-WC 200; or
c. Provide information
that has been requested by the council or by other participants, 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 participant represented by the representative, and all
other participants and their representatives, if any, to the proceeding of the
proposed prohibition; and
(2) Provide an
opportunity for the representative, the participant represented by the
representative, and all other participants and their representatives, if any,
to the proceeding to address the council regarding why the prohibition should
or should not be imposed.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98; ss by #8977-A, eff 9-14-07
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.14)
Env-WC
203.08 Service List; Service of
Documents.
(a) For each appeal, the appeals clerk shall
maintain a service list that identifies:
(1) Each
participant or, if the participant is represented and the representative filed
the notice of appeal or has otherwise filed an appearance, the participant’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 other than documents or exhibits filed at a hearing
or prehearing conference shall serve a copy of the document on each person
identified on the service list.
(d) Service shall be made:
(1) As
specified in (g), below;
(2) On or
before the date of filing of the original document with the appeals clerk; and
(3) On the
representative of a participant for whom a representative has filed an
appearance, provided however that timely service inadvertently made on a
participant for whom a representative has filed an appearance shall be
sufficient regardless of whether the participant’s representative also was
served.
(e) Except for exhibits distributed at a
prehearing conference or hearing, every document required to be served upon the
participants in 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 participants for whom a fax
number or e-mail address is available, and shall notify any participant for
whom a fax number or e-mail address is not available of the filing by
telephone.
(g) Delivery of documents pursuant to this
section shall be by:
(1) Delivery in
hand to the recipient or, if the recipient is unavailable, to the recipient’s
representative, in which case the person delivering the document shall sign a
statement indicating the date and time of delivery and the identify of the
person receiving the document;
(2) First class
mail to the recipient, postage prepaid, in which case a certificate of mailing
shall be obtained by the person sending the document;
(3) Certified
mail to the recipient, return receipt requested;
(4) Unites
States Postal Service express delivery service to the recipient; or
(5) Private
express delivery service, such as Federal Express® or UPS®, to the recipient.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC
203.09 Scheduling of Appeal Hearing.
(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-WC 203.02(a).
(b) Once a hearing has been scheduled, the appeals
clerk shall send written notice of the date, time, and place of the hearing to the
participants or, as applicable, their representatives, and to all other persons
who have filed an appearance with the appeals clerk. The notice shall include all information
required by RSA 541-A: 31, III, including but not limited to a statement that
the hearing is to consider the issues raised in the notice of appeal, a
statement of the legal authority under which the hearing is to be held, and a
reference to the particular statute(s), rule(s), or permit(s), as applicable,
involved in the appeal.
(c) If the hearing is rescheduled, the appeals
clerk shall send a notice of the date, time, and place of the rescheduled
hearing to the participants or their representatives, as applicable.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff 6-9-07,
EXPIRES: 12-6-07; ss by #8977-A, eff
9-14-07
Env-WC 203.10 Calendar
of Hearings. The appeals clerk shall
maintain a record of all appeals pending before the council.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.06)
Env-WC
203.11 Extensions of Time.
(a) Any participant in an appeal may petition the
council to extend any time limit established by Env-WC 200 in accordance with
this section.
(b) Prior to filing an extension request, the
participant shall seek concurrence with the request from all other participants
in the appeal.
(c) A request for an extension shall be in
writing and filed in accordance with Env-WC 202.06(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 participants in the appeal agree or
disagree with the request or did not respond to the request for concurrence.
(e) A copy of the request shall also be served in
accordance with Env-WC 203.08. If the
request is filed within 20 days of the expiration of the prescribed period, the
person filing the request shall implement the procedure specified in Env-WC
203.08(f).
(f) Any participant 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
participant in the appeal and:
(1) Meeting the
prescribed time limit would unduly burden the participant; or
(2) An
extension is otherwise necessary to conduct a more effective hearing.
(h) The council shall, in a timely manner, make a
decision with respect to the request for extension and notify all participants
in writing of its decision.
Source. (See Revision Note at chapter heading Env-WC 200)
#5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.09)
Env-WC
203.12 Continuances.
(a) Any participant 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 participant seeking the
continuance shall seek concurrence with the request from all other participants
in the appeal.
(c) A request made in advance of the 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 participants to the appeal agree or disagree with the request
or did not respond to the request for concurrence.
(d)
A request for a 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 participant
will be prejudiced by the delay. For
purposes of this section, reasonable cause shall include, but not be limited
to:
(1)
Unavailability of an individual participant, a representative, or
critical witness;
(2) The
participants believe that an informal resolution is possible and need more time
to resolve the matter; or
(3) The
participants are awaiting information, reports, data, or a related court
decision that is material to the appeal.
(f) The council shall deny the request if the
council determines that the request is not supported by reasonable cause. Grounds for determining that the request is
not supported by reasonable cause include, but are not limited to:
(1) An
individual participant, representative, or critical witness is chronically
unavailable;
(2) No progress
towards a settlement has been demonstrated by the participants; or
(3) There have
been repeated or unreasonable delays in obtaining information, reports, data,
or a related court decision that is material to the appeal.
(g) All orders for continuance shall specify the
time and place at which such hearing shall be reconvened. The presiding officer shall notify the
participants and the public, if applicable, in such a manner as is appropriate
to ensure that reasonable notice shall be given of the time and place of such
continued hearing.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07 (from Env-WC 203.25)
Env-WC
203.13 Motions and Objections Thereto.
(a) Any participant may file a written motion or make
an oral motion in accordance with this section.
(b) Prior to filing a written motion, the
participant shall seek concurrence with the relief requested in the motion from
all other participants in the appeal, provided however that if the motion would
result in a ruling that is adverse to another participant’s interests, the
moving participant does not need to seek concurrence from that participant.
(c) All motions shall:
(1) Contain a
clear and concise statement of the facts and law that support the motion;
(2) State the
specific relief or ruling requested;
(3) State
whether the other participants in the appeal agree or disagree with the motion
or did not respond to the request for concurrence; and
(4) If filed in
writing, be signed as required by Env-WC 202.07.
(d) The participant who makes the motion shall
have the burden of persuasion on all matters raised in the motion and the
overall burden of persuading the council to grant the motion.
(e) If the need for a motion does not become
apparent until after the hearing has started, a participant may make an oral
motion. An oral motion shall be recorded
in full on the tape recording of the hearing.
(f) All participants 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 and 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.
(g)
An objection to the motion
shall clearly and concisely state:
(1) The action which the party filing the
objection wants the council to take on the motion; and
(2) Any facts and law relied upon in opposition
to the motion.
(h) Repetitious motions shall not be submitted.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC 203.14 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. If the appeal was
resolved by a settlement, the appellant shall attach a copy of the settlement
to the notice of withdrawal.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC 203.15 Presiding
Officer.
(a) The presiding officer for an appeal shall be
the chairman of the council or a member of the council designated by the
chairman.
(b) The presiding officer shall:
(1) Rule on
issues of evidence;
(2) Regulate
the course of the proceeding;
(3) Rule upon
issues of procedures;
(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.
(c)
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:
(1) Made on the record of the appeal; and
(2) Included in a motion for rehearing.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC 203.16 Withdrawal of Presiding Officer.
(a)
Any participant may request the
presiding officer to withdraw from an appeal for good cause.
(b)
A request for the presiding officer to withdraw shall be in the form of
a motion that is filed and handled in accordance with Env-WC
203.13.
(c)
For purposes of this section,
good cause for withdrawal shall be that the presiding officer has an
objectively-demonstrated bias for or against one or more of the participants. Good cause shall not include that the council
member serving as the presiding officer was appointed to the council to
represent a particular interest group or state agency.
(d)
The participant requesting the
withdrawal of the presiding officer shall support the request with sworn
testimony or other evidence submitted with the motion.
(e)
For purposes of this section, an “objectively-demonstrated bias” means
that the participant requesting the presiding
officer to withdraw submits evidence that shows, by a preponderance of the
evidence, that the presiding officer has had personal dealings with the project
under appeal or a participant in the proceeding that would cause a reasonable
person to believe that as a result of the dealings, the presiding officer will
discount or ignore evidence and law to find in favor of or against the participant.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
Env-WC 203.17 Recusal of Council Members.
(a)
Any participant may request a council member to recuse himself
or herself from hearing the appeal for good cause.
(b)
A request for recusal of a council member shall be in
the form of a motion that is filed and handled in accordance with Env-WC
203.13.
(c)
For purposes of this section, good cause for recusal shall be that the
council member has an objectively-demonstrated bias for or against one or more
of the participants. Good cause shall not include that the council
member was appointed to the council to represent a particular interest group or
state agency.
(d)
The participant requesting the
recusal of the council member shall support the request with sworn testimony or
other evidence submitted with the motion.
(e)
For purposes of this section, an “objectively-demonstrated bias” means
that the participant requesting the recusal of the council
member submits evidence that shows, by a preponderance of the evidence, that
the council member has had personal dealings with the project under appeal or a
participant in the proceeding that would cause a reasonable person to believe that as
a result of the dealings, the council member will discount or ignore evidence
and law to find in favor of or against the participant.
Source. (See Revision Note at chapter heading Env-WC
200) #5469, eff 9-17-92, EXPIRED: 9-17-98
New. #6860, INTERIM, eff 10-1-98, EXPIRED: 1-29-99
New. #7011, eff 6-9-99; ss by #8892, INTERIM, eff
6-9-07, EXPIRES: 12-6-07; ss by #8977-A,
eff 9-14-07
PART Env-WC 204
APPEALS: PREHEARINGS; HEARINGS
Env-WC
204.01 Settlement Discussions;
Prehearing Conferences.
(a) After receiving a notice of appeal, the department’s designated representative shall contact
the appellant and all other participants in 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 participants meet
and agree to a resolution of the matter, then the appellant shall withdraw the
appeal in accordance with Env-WC 203.14.
(b) If the participants agree to meet but a
meeting cannot be scheduled 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 participant
or the council from requesting a prehearing conference in accordance with RSA
541-A:31, V, in lieu of or in addition to a meeting scheduled or held pursuant
to (a), above.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.10)
Env-WC
204.02 Supplemental Materials. Unless otherwise agreed at a prehearing conference,
memoranda, briefs, and other written materials designed to supplement a notice
of appeal shall be filed in accordance with Env-WC 202.06(b) and served in
accordance with Env-WC 203.08 at least 10 business days prior to the scheduled
hearing on the appeal.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.15)
Env-WC
204.03 Pre-hearing Exchange of
Information.
(a) Unless otherwise agreed at a prehearing
conference, more than one week prior to the commencement of a hearing the
participants 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 participant wishes to obtain information
other than that specified in (a), above, from another participant, the
requesting participant shall request the information in writing and shall file
a copy of the request with the appeals clerk and serve a copy on the
participant 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 participant 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 participant who has received a request for information
pursuant to (b), above, may decline to provide information that the participant
believes is:
(1)
Confidential;
(2) Privileged;
(3) Not
directly related to the matter at hand; or
(4) Excessively
burdensome to produce.
(f) If a participant 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 participant who has requested information
pursuant to (b), above, that is not provided may request the presiding officer
to require the participant of whom the information was requested to provide the
information. Such requests shall be in
the form of a written motion that is filed and handled in accordance with
Env-WC 203.13.
(h) The participant 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 participant 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
participant 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 participant 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 participant
cannot reasonably present its case without the requested information. If the council finds that the requesting
participant cannot reasonably present its case without the requested
information, the council shall find in favor of the requesting participant 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. #8977-A,
eff 9-14-07
Env-WC
204.04 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. #8977-A,
eff 9-14-07
Env-WC
204.05 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 participants at or for the hearing; and
(4) Any other
item(s) specified by RSA 541-A:31, VI.
(b) All testimony shall be recorded. The council, upon request of a participant,
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.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.17)
Env-WC
204.06 Testimony.
(a) All testimony to issues of fact presented by
participants and other 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 participant, the identity of the participant 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 participant offering such
testimony to submit the testimony in written form, provided such requirement
will not substantially prejudice the interests of any participant in the
hearing. Upon request of the participant
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) The department
and such witnesses as the department may call; and
(3)
Intervenor(s) and such witnesses as the intervenor(s) 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 a 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 participants 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. #8977-A,
eff 9-14-07 (from Env-WC 203.19)
Env-WC
204.07 General Evidence.
(a) Pursuant to RSA 541-A:33, II, the rules of
evidence shall not apply.
(b) Evidence that is relevant and material to the
subject matter of the hearing shall be admissible. Evidence that is irrelevant, immaterial, or
unduly repetitious shall be excluded.
The experience, technical competence, and specialized knowledge of the
councilors, if relevant, may 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 relevant laws, official rules, and transcripts of other hearings, judicially
recognizable facts, generally recognized facts of common knowledge to the
general public, and physical, technical or scientific facts within the
council’s specialized knowledge consistent with the requirements of RSA
541-A:33, V. The final decision of the
council shall specifically identify those facts of which official notice was
taken.
(d) All documents, materials, and objects offered
in evidence as exhibits shall be marked by the offering participant 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 participant 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 examination by all participants. 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. #8977-A,
eff 9-14-07 (from Env-WC 203.20)
Env-WC
204.08 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 participant offering an exhibit shall
supply the original and 20 copies thereof to the council and shall provide a
copy to each other participant, unless exempted under Env-WC 204.07(d).
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.22)
Env-WC
204.09 Requests for Findings and
Conclusions.
(a) Any participant may submit requests for
findings of fact and conclusions of law by the close of the record, as
established under Env-WC 204.10.
(b) If a participant submits requests for
findings of fact and conclusions of law, each requested finding or ruling shall
be a separately-numbered statement.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.23)
Env-WC
204.10 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
participant 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 participant filing such additional
material shall serve copies of all items filed in accordance with Env-WC
203.08.
(d) If any other participant 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 participant 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. #8977-A,
eff 9-14-07 (from Env-WC 203.27)
Env-WC
204.11 Reopening of the Record.
(a) At any time prior to a final decision on the
appeal, any participant in 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
participants have left the hearing, the request shall be in writing and a copy
of the request shall be served in accordance with Env-WC 203.08.
(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
participants if the participants are no longer present. The presiding officer shall also set a time
within which other participants may respond to or rebut the items made part of
the record.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.28)
Env-WC
204.12 Failure to Appear. If any participant 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 participant(s) present, the
council shall hear the evidence and testimony of the participant(s) present and
shall render a decision thereon, subject to Env-WC 204.13.
Source. #8977-A,
eff 9-14-07
Env-WC
204.13 Reconvening of Hearings.
(a) If a hearing is held in a participant’s
absence pursuant to Env-WC 204.12, the participant 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 participant 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 participant’s failure to appear at the hearing and to
explain the participant’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 participant which prevents the participant from attending the
hearing and from notifying the appeals clerk.
Source. #8977-A,
eff 9-14-07
Env-WC
204.14 Burden and Standard of Proof.
(a) In any appeal of a department decision, the decision
being appealed shall be presumed to be lawful and reasonable. 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
statute or rules; or
(2) Arbitrary
and capricious.
(b) For motions, waiver requests, and other
non-dispositive matters, the participant asserting the truth of a statement
shall bear 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) or (b), above, the
participant filing a motion shall have the burden of persuading the council
that the motion should be granted.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.16)
Env-WC
204.15 Decisions.
(a) A decision shall be made by a majority of the
quorum that heard the appeal, with all council members who are necessary to
constitute a quorum voting.
(b) Unless the appeal is withdrawn pursuant to
Env-WC 203.14, the council shall issue a final decision in writing. The final decision 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 participant has submitted proposed
findings of fact, the decision shall include a ruling upon each proposed
finding, except that no ruling shall be necessary on any compound request.
(d) The appeals clerk shall serve a copy of the
council’s decision on each participant in accordance with Env-WC 203.08.
(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. #8977-A,
eff 9-14-07
Env-WC
204.16 Motion for Rehearing.
(a) Any participant whose rights are directly and
adversely affected by a decision of the council may file with the council a
motion for rehearing within the time period established in RSA 541:3. Copies of the motion shall be served in
accordance with Env-WC 203.08.
(b) A motion for rehearing shall set forth in
detail the following:
(1) The basis
of the moving participant’s aggrievement;
(2) The
finding(s), conclusion(s), or condition(s) to which the moving participant
objects;
(3) The basis
for the objection(s);
(4) Whether the
moving participant 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.
(c) The council shall, at its first scheduled
meeting following the receipt of such a motion, order a hearing or dismiss the
motion. 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 all participants of the rehearing.
(d) If a rehearing is granted, the moving
participant may offer new or additional evidence 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.
(e) A council decision shall become final if no
motion for rehearing is filed within the period specified in (a), above.
Source. #8977-A,
eff 9-14-07 (from Env-WC 203.29)
PART Env-WC 205
RULEMAKING PETITIONS AND HEARINGS
Env-WC
205.01 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-WC 202.06(a).
Source. #8977-A,
eff 9-14-07
Env-WC
205.02 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 clear and
concise 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. #8977-A,
eff 9-14-07
Env-WC
205.03 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. #8977-A,
eff 9-14-07
Env-WC
205.04 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 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 provided pursuant to (a),
above; and
(h) Hearings on proposed rules shall be continued
or postponed only in accordance with RSA 541-A:11, III or IV, respectively.
Source. #8977-A,
eff 9-14-07
PART Env-WC 206
DECLARATORY RULINGS
Env-WC
206.01 Filing.
(a) Any person seeking a declaratory ruling from
the council as to the meaning or applicability of a rule in this chapter shall
file the original and one copy of a petition for declaratory ruling with the
council clerk at the address identified in Env-WC 202.06(a).
(b) A request for declaratory ruling shall not be
filed as a substitute for an appeal of a department decision or request for
reconsideration of a council decision.
Source. #8977-A,
eff 9-14-07
Env-WC
206.02 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
person;
(2) A precise
and complete citation to the administrative rule for which the petitioner seeks
a ruling; and
(3) A clear and
concise 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. #8977-A,
eff 9-14-07
Env-WC
206.03 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 after 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 after the first council
meeting following receipt of assistance from the department of justice.
(f) Declaratory rulings issued by the council
shall be filed with the director of legislative services in accordance with RSA
541-A:16, II(b).
Source. #8977-A,
eff 9-14-07
PART Env-WC 207
EXPLANATION OF RULES
Env-WC
207.01 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-WC 202.06(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. #8977-B, eff 9-14-07
APPENDIX
RULE |
STATUTE |
|
|
Env-WC 201 |
RSA 21-O:7; RSA
21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA
541-A:31-36 |
Env-WC 202 (also see
sections implementing specific statutes as listed below) |
RSA 21-O:7; RSA 21-O:14;
RSA 541-A:16, I; RSA 541-A:30-a; RSA
541-A:31-36 |
Env-WC 202.05 |
RSA 541-A:30-a, III(f) |
Env-WC 202.06, 202.09 |
RSA 541-A:30-a, III(a) |
Env-WC 202.10 |
RSA 541-A:30-a,
III(b); RSA 541-A:36 |
Env-WC 202.13 |
RSA 541-A:30-a, III(j) |
Env-WC 203 (also see
sections implementing specific statutes as listed below) |
RSA 21-O:7; RSA
21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA
541-A:31, 35, 36 |
Env-WC 203.01, 203.05
- 203.07 |
RSA 541-A:30-a, III(b) |
Env-WC 203.12 |
RSA 541-A:30-a, III(h) |
Env-WC 203.13 |
RSA 541-A:30-a, III(b) |
Env-WC 203.15 |
RSA 541-A:30-a, III(j) |
Env-WC 203.16 |
RSA 541-A:30-a, III(k) |
Env-WC 203.17 |
RSA 541-A:30-a, III(g) |
Env-WC 204 (also see sections
implementing specific statutes as listed below) |
RSA 21-O:7; RSA
21-O:14; RSA 541-A:16, I; RSA 541-A:30-a; RSA
541-A:31 - 36 |
Env-WC 204.03 |
RSA 541-A:30-a, III(c) |
Env-WC 204.14 |
RSA 541-A:30-a,
III(d), (e) |
Env-WC 204.11 |
RSA 541-A:30-a, III(i) |
Env-WC 204.15(e) |
RSA 541-A:30-a, III(l) |
Env-WC 205 |
RSA 541-A:16, I(c) |
Env-WC 206 |
RSA 541-A:16, I(d) |
Env-WC 207 |
RSA 541-A:11, VII |