2021 -- S 0321 SUBSTITUTE A | |
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LC000637/SUB A | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2021 | |
____________ | |
A N A C T | |
RELATING TO WATERS AND NAVIGATION -- STATE AFFAIRS AND GOVERNMENT -- | |
HEALTH AND SAFETY | |
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Introduced By: Senators Euer, Cano, Murray, DiMario, and Valverde | |
Date Introduced: February 18, 2021 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 46-12-9 and 46-12-17 of the General Laws in Chapter 46-12 entitled |
2 | "Water Pollution" are hereby amended to read as follows: |
3 | 46-12-9. Notices of violation and compliance orders. |
4 | (a) The director shall follow the procedures provided in § 42-17.1-10(g) § 42-17.1-2(21) |
5 | in issuing any notice of violation or compliance order authorized pursuant to this chapter or any |
6 | rules, regulations, or permits promulgated thereunder. |
7 | (b) Where an order of the director does not specify the system or means to be adopted, the |
8 | person against whom an order is entered shall, before proceeding to install a system or means, |
9 | submit to the director a plan or statement describing the system or means which the person proposes |
10 | to adopt. |
11 | (c) Any order or notice issued by the director shall be eligible for recordation under chapter |
12 | 13 of title 34. The director shall forward the original order or notice to the city or town wherein the |
13 | subject property is located and the order or notice shall be recorded in the land evidence records in |
14 | the city or town wherein the subject property is located. Any subsequent transferee of that property |
15 | shall be responsible for complying with the requirements of the order or notice. Upon satisfactory |
16 | completion of the requirements of the order or notice, the director shall provide written notice of |
17 | the same to the owner of the subject property, which notice shall be similarly eligible for |
18 | recordation. |
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1 | 46-12-17. Proceedings for enforcement. |
2 | The superior court for Providence County shall have concurrent jurisdiction to enforce the |
3 | provisions of this chapter and any rule, regulation, permit, or order issued pursuant thereto. |
4 | Proceedings for enforcement may be instituted and prosecuted in the name of the director, by either |
5 | the director or by the attorney general, and in any proceedings in which the director or the attorney |
6 | general seeks injunctive relief is sought, it shall not be necessary for the director to show that |
7 | without the relief, the injury which will result will be irreparable or that the remedy at law is |
8 | inadequate. Proceedings provided in this section shall be in addition to and may be utilized in lieu |
9 | of other administrative or judicial proceedings authorized by this chapter. |
10 | SECTION 2. Section 42-17.1-2 of the General Laws in Chapter 42-17.1 entitled |
11 | "Department of Environmental Management" is hereby amended to read as follows: |
12 | 42-17.1-2. Powers and duties. |
13 | The director of environmental management shall have the following powers and duties: |
14 | (1) To supervise and control the protection, development, planning, and utilization of the |
15 | natural resources of the state, such resources, including, but not limited to: water, plants, trees, soil, |
16 | clay, sand, gravel, rocks and other minerals, air, mammals, birds, reptiles, amphibians, fish, |
17 | shellfish, and other forms of aquatic, insect, and animal life; |
18 | (2) To exercise all functions, powers, and duties heretofore vested in the department of |
19 | agriculture and conservation, and in each of the divisions of the department, such as the promotion |
20 | of agriculture and animal husbandry in their several branches, including the inspection and |
21 | suppression of contagious diseases among animals; the regulation of the marketing of farm |
22 | products; the inspection of orchards and nurseries; the protection of trees and shrubs from injurious |
23 | insects and diseases; protection from forest fires; the inspection of apiaries and the suppression of |
24 | contagious diseases among bees; the prevention of the sale of adulterated or misbranded |
25 | agricultural seeds; promotion and encouragement of the work of farm bureaus, in cooperation with |
26 | the University of Rhode Island, farmers' institutes, and the various organizations established for the |
27 | purpose of developing an interest in agriculture; together with such other agencies and activities as |
28 | the governor and the general assembly may, from time to time, place under the control of the |
29 | department; and as heretofore vested by such of the following chapters and sections of the general |
30 | laws as are presently applicable to the department of environmental management and that were |
31 | previously applicable to the department of natural resources and the department of agriculture and |
32 | conservation or to any of its divisions: chapters 1 through 22, inclusive, as amended, in title 2 |
33 | entitled "Agriculture and Forestry"; chapters 1 through 17, inclusive, as amended, in title 4 entitled |
34 | "Animals and Animal Husbandry"; chapters 1 through 19, inclusive, as amended, in title 20 entitled |
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1 | "Fish and Wildlife"; chapters 1 through 32, inclusive, as amended, in title 21 entitled "Food and |
2 | Drugs"; chapter 7 of title 23, as amended, entitled "Mosquito Abatement"; and by any other general |
3 | or public law relating to the department of agriculture and conservation or to any of its divisions or |
4 | bureaus; |
5 | (3) To exercise all the functions, powers, and duties heretofore vested in the division of |
6 | parks and recreation of the department of public works by chapters 1, 2, and 5 in title 32 entitled |
7 | "Parks and Recreational Areas"; by chapter 22.5 of title 23, as amended, entitled "Drowning |
8 | Prevention and Lifesaving"; and by any other general or public law relating to the division of parks |
9 | and recreation; |
10 | (4) To exercise all the functions, powers, and duties heretofore vested in the division of |
11 | harbors and rivers of the department of public works, or in the department itself by such as were |
12 | previously applicable to the division or the department, of chapters 1 through 22 and sections |
13 | thereof, as amended, in title 46 entitled "Waters and Navigation"; and by any other general or public |
14 | law relating to the division of harbors and rivers; |
15 | (5) To exercise all the functions, powers, and duties heretofore vested in the department of |
16 | health by chapters 25, 18.9, and 19.5 of title 23, as amended, entitled "Health and Safety"; and by |
17 | chapters 12 and 16 of title 46, as amended, entitled "Waters and Navigation"; by chapters 3, 4, 5, |
18 | 6, 7, 9, 11, 13, 18, and 19 of title 4, as amended, entitled "Animals and Animal Husbandry"; and |
19 | those functions, powers, and duties specifically vested in the director of environmental |
20 | management by the provisions of § 21-2-22, as amended, entitled "Inspection of Animals and |
21 | Milk"; together with other powers and duties of the director of the department of health as are |
22 | incidental to, or necessary for, the performance of the functions transferred by this section; |
23 | (6) To cooperate with the Rhode Island commerce corporation in its planning and |
24 | promotional functions, particularly in regard to those resources relating to agriculture, fisheries, |
25 | and recreation; |
26 | (7) To cooperate with, advise, and guide conservation commissions of cities and towns |
27 | created under chapter 35 of title 45 entitled "Conservation Commissions", as enacted by chapter |
28 | 203 of the Public Laws, 1960; |
29 | (8) To assign or reassign, with the approval of the governor, any functions, duties, or |
30 | powers established by this chapter to any agency within the department, except as hereinafter |
31 | limited; |
32 | (9) To cooperate with the water resources board and to provide to the board facilities, |
33 | administrative support, staff services, and other services as the board shall reasonably require for |
34 | its operation and, in cooperation with the board and the statewide planning program, to formulate |
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1 | and maintain a long-range guide plan and implementing program for development of major water- |
2 | sources transmission systems needed to furnish water to regional- and local-distribution systems; |
3 | (10) To cooperate with the solid waste management corporation and to provide to the |
4 | corporation such facilities, administrative support, staff services, and other services within the |
5 | department as the corporation shall reasonably require for its operation; |
6 | (11) To provide for the maintenance of waterways and boating facilities, consistent with |
7 | chapter 6.1 of title 46, by: (i) Establishing minimum standards for upland beneficial use and |
8 | disposal of dredged material; (ii) Promulgating and enforcing rules for water quality, ground water |
9 | protection, and fish and wildlife protection pursuant to § 42-17.1-24; (iii) Planning for the upland |
10 | beneficial use and/or disposal of dredged material in areas not under the jurisdiction of the council |
11 | pursuant to § 46-23-6(2); and (iv) Cooperating with the coastal resources management council in |
12 | the development and implementation of comprehensive programs for dredging as provided for in |
13 | §§ 46-23-6(1)(ii)(H) and 46-23-18.3; and (v) Monitoring dredge material management and disposal |
14 | sites in accordance with the protocols established pursuant to § 46-6.1-5(a)(3) and the |
15 | comprehensive program provided for in § 46-23-6(1)(ii)(H); no powers or duties granted herein |
16 | shall be construed to abrogate the powers or duties granted to the coastal resources management |
17 | council under chapter 23 of title 46, as amended; |
18 | (12) To establish minimum standards, subject to the approval of the environmental |
19 | standards board, relating to the location, design, construction, and maintenance of all sewage- |
20 | disposal systems; |
21 | (13) To enforce, by such means as provided by law, the standards for the quality of air, and |
22 | water, and the design, construction, and operation of all sewage-disposal systems; any order or |
23 | notice issued by the director relating to the location, design, construction, or maintenance of a |
24 | sewage-disposal system shall be eligible for recordation under chapter 13 of title 34. The director |
25 | shall forward the order or notice to the city or town wherein the subject property is located and the |
26 | order or notice shall be recorded in the general index by the appropriate municipal official in the |
27 | land evidence records in the city or town wherein the subject property is located. Any subsequent |
28 | transferee of that property shall be responsible for complying with the requirements of the order or |
29 | notice. Upon satisfactory completion of the requirements of the order or notice, the director shall |
30 | provide written notice of the same, which notice shall be similarly eligible for recordation. The |
31 | original written notice shall be forwarded to the city or town wherein the subject property is located |
32 | and the notice of satisfactory completion shall be recorded in the general index by the appropriate |
33 | municipal official in the land evidence records in the city or town wherein the subject property is |
34 | located. A copy of the written notice shall be forwarded to the owner of the subject property within |
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1 | five (5) days of a request for it, and, in any event, shall be forwarded to the owner of the subject |
2 | property within thirty (30) days after correction; |
3 | (14) To establish minimum standards for the establishment and maintenance of salutary |
4 | environmental conditions, including standards and methods for the assessment and the |
5 | consideration of the cumulative effects on the environment of regulatory actions and decisions, |
6 | which standards for consideration of cumulative effects shall provide for: (i) Evaluation of potential |
7 | cumulative effects that could adversely affect public health and/or impair ecological functioning; |
8 | (ii) Analysis of other matters relative to cumulative effects as the department may deem appropriate |
9 | in fulfilling its duties, functions, and powers; which standards and methods shall only be applicable |
10 | to ISDS systems in the town of Jamestown in areas that are dependent for water supply on private |
11 | and public wells, unless broader use is approved by the general assembly. The department shall |
12 | report to the general assembly not later than March 15, 2008, with regard to the development and |
13 | application of the standards and methods in Jamestown; |
14 | (15) To establish and enforce minimum standards for permissible types of septage, |
15 | industrial-waste disposal sites, and waste-oil disposal sites; |
16 | (16) To establish minimum standards, subject to the approval of the environmental |
17 | standards board, for permissible types of refuse disposal facilities; the design, construction, |
18 | operation, and maintenance of disposal facilities; and the location of various types of facilities; |
19 | (17) To exercise all functions, powers, and duties necessary for the administration of |
20 | chapter 19.1 of title 23 entitled "Rhode Island Hazardous Waste Management Act"; |
21 | (18) To designate, in writing, any person in any department of the state government or any |
22 | official of a district, county, city, town, or other governmental unit, with that official's consent, to |
23 | enforce any rule, regulation, or order promulgated and adopted by the director under any provision |
24 | of law; provided, however, that enforcement of powers of the coastal resources management |
25 | council shall be assigned only to employees of the department of environmental management, |
26 | except by mutual agreement or as otherwise provided in chapter 23 of title 46; |
27 | (19) To issue and enforce the rules, regulations, and orders as may be necessary to carry |
28 | out the duties assigned to the director and the department by any provision of law; and to conduct |
29 | investigations and hearings and to issue, suspend, and revoke licenses as may be necessary to |
30 | enforce those rules, regulations, and orders. Any license suspended under the rules, regulations, |
31 | and/or orders shall be terminated and revoked if the conditions that led to the suspension are not |
32 | corrected to the satisfaction of the director within two (2) years; provided that written notice is |
33 | given by certified mail, return receipt requested, no less than sixty (60) days prior to the date of |
34 | termination. |
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1 | Notwithstanding the provisions of § 42-35-9 to the contrary, no informal disposition of a |
2 | contested licensing matter shall occur where resolution substantially deviates from the original |
3 | application unless all interested parties shall be notified of the proposed resolution and provided |
4 | with opportunity to comment upon the resolution pursuant to applicable law and any rules and |
5 | regulations established by the director; |
6 | (20) To enter, examine, or survey, at any reasonable time, places as the director deems |
7 | necessary to carry out his or her responsibilities under any provision of law subject to the following |
8 | provisions: |
9 | (i) For criminal investigations, the director shall, pursuant to chapter 5 of title 12, seek a |
10 | search warrant from an official of a court authorized to issue warrants, unless a search without a |
11 | warrant is otherwise allowed or provided by law; |
12 | (ii)(A) All administrative inspections shall be conducted pursuant to administrative |
13 | guidelines promulgated by the department in accordance with chapter 35 of title 42; |
14 | (B) A warrant shall not be required for administrative inspections if conducted under the |
15 | following circumstances, in accordance with the applicable constitutional standards: |
16 | (I) For closely regulated industries; |
17 | (II) In situations involving open fields or conditions that are in plain view; |
18 | (III) In emergency situations; |
19 | (IV) In situations presenting an imminent threat to the environment or public health, safety, |
20 | or welfare; |
21 | (V) If the owner, operator, or agent in charge of the facility, property, site, or location |
22 | consents; or |
23 | (VI) In other situations in which a warrant is not constitutionally required. |
24 | (C) Whenever it shall be constitutionally or otherwise required by law, or whenever the |
25 | director in his or her discretion deems it advisable, an administrative search warrant, or its |
26 | functional equivalent, may be obtained by the director from a neutral magistrate for the purpose of |
27 | conducting an administrative inspection. The warrant shall be issued in accordance with the |
28 | applicable constitutional standards for the issuance of administrative search warrants. The |
29 | administrative standard of probable cause, not the criminal standard of probable cause, shall apply |
30 | to applications for administrative search warrants; |
31 | (I) The need for, or reliance upon, an administrative warrant shall not be construed as |
32 | requiring the department to forfeit the element of surprise in its inspection efforts; |
33 | (II) An administrative warrant issued pursuant to this subsection must be executed and |
34 | returned within ten (10) days of its issuance date unless, upon a showing of need for additional |
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1 | time, the court orders otherwise; |
2 | (III) An administrative warrant may authorize the review and copying of documents that |
3 | are relevant to the purpose of the inspection. If documents must be seized for the purpose of |
4 | copying, and the warrant authorizes the seizure, the person executing the warrant shall prepare an |
5 | inventory of the documents taken. The time, place, and manner regarding the making of the |
6 | inventory shall be set forth in the terms of the warrant itself, as dictated by the court. A copy of the |
7 | inventory shall be delivered to the person from whose possession or facility the documents were |
8 | taken. The seized documents shall be copied as soon as feasible under circumstances preserving |
9 | their authenticity, then returned to the person from whose possession or facility the documents were |
10 | taken; |
11 | (IV) An administrative warrant may authorize the taking of samples of air, water, or soil |
12 | or of materials generated, stored, or treated at the facility, property, site, or location. Upon request, |
13 | the department shall make split samples available to the person whose facility, property, site, or |
14 | location is being inspected; |
15 | (V) Service of an administrative warrant may be required only to the extent provided for |
16 | in the terms of the warrant itself, by the issuing court. |
17 | (D) Penalties. Any willful and unjustified refusal of right of entry and inspection to |
18 | department personnel pursuant to an administrative warrant shall constitute a contempt of court and |
19 | shall subject the refusing party to sanctions, which in the court's discretion may result in up to six |
20 | (6) months imprisonment and/or a monetary fine of up to ten thousand dollars ($10,000) per refusal. |
21 | (21) To give notice of an alleged violation of law to the person responsible therefor |
22 | whenever the director determines that there are reasonable grounds to believe that there is a |
23 | violation of any provision of law within his or her jurisdiction or of any rule or regulation adopted |
24 | pursuant to authority granted to him or her, unless other notice and hearing procedure is specifically |
25 | provided by that law. Nothing in this chapter shall limit the authority of the attorney general to |
26 | prosecute offenders as required by law; |
27 | (i) The notice shall provide for a time within which the alleged violation shall be remedied, |
28 | and shall inform the person to whom it is directed that a written request for a hearing on the alleged |
29 | violation may be filed with the director within ten (10) twenty (20) days after service of the notice. |
30 | The notice will be deemed properly served upon a person if a copy thereof is served him or her |
31 | personally; or sent by registered or certified mail to his or her last known address; or if he or she is |
32 | served with notice by any other method of service now or hereafter authorized in a civil action |
33 | under the laws of this state. If no written request for a hearing is made to the director within ten |
34 | (10) twenty (20) days of the service of notice, the notice shall automatically become a compliance |
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1 | order; |
2 | (ii)(A) Whenever the director determines that there exists a violation of any law, rule, or |
3 | regulation within his or her jurisdiction that requires immediate action to protect the environment, |
4 | he or she may, without prior notice of violation or hearing, issue an immediate-compliance order |
5 | stating the existence of the violation and the action he or she deems necessary. The compliance |
6 | order shall become effective immediately upon service or within such time as is specified by the |
7 | director in such order. No request for a hearing on an immediate-compliance order may be made; |
8 | (B) Any immediate-compliance order issued under this section without notice and prior |
9 | hearing shall be effective for no longer than forty-five (45) days; provided, however, that for good |
10 | cause shown, the order may be extended one additional period not exceeding forty-five (45) days. |
11 | (iii) The director may, at his or her discretion and for the purposes of timely and effective |
12 | resolution and return to compliance, cite a person for alleged noncompliance through the issuance |
13 | of an expedited citation in accordance with § 42-17.6-3(c); |
14 | (iv) If a person upon whom a notice of violation has been served under the provisions of |
15 | this section or if a person aggrieved by any such notice of violation requests a hearing before the |
16 | director within ten (10) twenty (20) days of the service of notice of violation, the director shall set |
17 | a time and place for the hearing, and shall give the person requesting that hearing at least five (5) |
18 | days written notice thereof. After the hearing, the director may make findings of fact and shall |
19 | sustain, modify, or withdraw the notice of violation. If the director sustains or modifies the notice, |
20 | that decision shall be deemed a compliance order and shall be served upon the person responsible |
21 | in any manner provided for the service of the notice in this section; |
22 | (v) The compliance order shall state a time within which the violation shall be remedied, |
23 | and the original time specified in the notice of violation shall be extended to the time set in the |
24 | order; |
25 | (vi) Whenever a compliance order has become effective, whether automatically where no |
26 | hearing has been requested, where an immediate compliance order has been issued, or upon |
27 | decision following a hearing, the director may institute injunction proceedings in the superior court |
28 | of the state for enforcement of the compliance order and for appropriate temporary relief, and in |
29 | that proceeding, the correctness of a compliance order shall be presumed and the person attacking |
30 | the order shall bear the burden of proving error in the compliance order, except that the director |
31 | shall bear the burden of proving in the proceeding the correctness of an immediate compliance |
32 | order. The remedy provided for in this section shall be cumulative and not exclusive and shall be |
33 | in addition to remedies relating to the removal or abatement of nuisances or any other remedies |
34 | provided by law; |
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1 | (vii) Any party aggrieved by a final judgment of the superior court may, within thirty (30) |
2 | days from the date of entry of such judgment, petition the supreme court for a writ of certiorari to |
3 | review any questions of law. The petition shall set forth the errors claimed. Upon the filing of the |
4 | petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ of |
5 | certiorari. |
6 | (22) To impose administrative penalties in accordance with the provisions of chapter 17.6 |
7 | of this title and to direct that such penalties be paid into the account established by subdivision (26); |
8 | (23) The following definitions shall apply in the interpretation of the provisions of this |
9 | chapter: |
10 | (i) Director: The term "director" shall mean the director of environmental management of |
11 | the state of Rhode Island or his or her duly authorized agent; |
12 | (ii) Person: The term "person" shall include any individual, group of individuals, firm, |
13 | corporation, association, partnership, or private or public entity, including a district, county, city, |
14 | town, or other governmental unit or agent thereof, and in the case of a corporation, any individual |
15 | having active and general supervision of the properties of the corporation; |
16 | (iii) Service: (A) Service upon a corporation under this section shall be deemed to include |
17 | service upon both the corporation and upon the person having active and general supervision of the |
18 | properties of the corporation; |
19 | (B) For purposes of calculating the time within which a claim for a hearing is made |
20 | pursuant to subdivision (21)(i), service shall be deemed to be the date of receipt of such notice or |
21 | three (3) days from the date of mailing of the notice, whichever shall first occur. |
22 | (24)(i) To conduct surveys of the present private and public camping and other recreational |
23 | areas available and to determine the need for and location of other camping and recreational areas |
24 | as may be deemed necessary and in the public interest of the state of Rhode Island and to report |
25 | back its findings on an annual basis to the general assembly on or before March 1 of every year; |
26 | (ii) Additionally, the director of the department of environmental management shall take |
27 | additional steps, including, but not limited to, matters related to funding as may be necessary to |
28 | establish such other additional recreational facilities and areas as are deemed to be in the public |
29 | interest. |
30 | (25)(i) To apply for and accept grants and bequests of funds, with the approval of the |
31 | director of administration, from other states, interstate agencies, and independent authorities, and |
32 | private firms, individuals, and foundations, for the purpose of carrying out his or her lawful |
33 | responsibilities. The funds shall be deposited with the general treasurer in a restricted receipt |
34 | account created in the natural resources program for funds made available for that program's |
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1 | purposes or in a restricted receipt account created in the environmental protection program for |
2 | funds made available for that program's purposes. All expenditures from the accounts shall be |
3 | subject to appropriation by the general assembly, and shall be expended in accordance with the |
4 | provisions of the grant or bequest. In the event that a donation or bequest is unspecified, or in the |
5 | event that the trust account balance shows a surplus after the project as provided for in the grant or |
6 | bequest has been completed, the director may utilize the appropriated unspecified or appropriated |
7 | surplus funds for enhanced management of the department's forest and outdoor public recreation |
8 | areas, or other projects or programs that promote the accessibility of recreational opportunities for |
9 | Rhode Island residents and visitors; |
10 | (ii) The director shall submit to the house fiscal advisor and the senate fiscal advisor, by |
11 | October 1 of each year, a detailed report on the amount of funds received and the uses made of such |
12 | funds. |
13 | (26) To establish fee schedules by regulation, with the approval of the governor, for the |
14 | processing of applications and the performing of related activities in connection with the |
15 | department's responsibilities pursuant to subsection (12); chapter 19.1 of title 23, as it relates to |
16 | inspections performed by the department to determine compliance with chapter 19.1 and rules and |
17 | regulations promulgated in accordance therewith; chapter 18.9 of title 23, as it relates to inspections |
18 | performed by the department to determine compliance with chapter 18.9 and the rules and |
19 | regulations promulgated in accordance therewith; chapters 19.5 and 23 of title 23; chapter 12 of |
20 | title 46, insofar as it relates to water-quality certifications and related reviews performed pursuant |
21 | to provisions of the federal Clean Water Act, 33 U.S.C. § 1251 et seq.; the regulation and |
22 | administration of underground storage tanks and all other programs administered under chapter 12 |
23 | of title 46 and § 2-1-18 et seq., and chapter 13.1 of title 46 and chapter 13.2 of title 46, insofar as |
24 | they relate to any reviews and related activities performed under the provisions of the Groundwater |
25 | Protection Act; chapter 24.9 of title 23 as it relates to the regulation and administration of mercury- |
26 | added products; and chapter 17.7 of this title, insofar as it relates to administrative appeals of all |
27 | enforcement, permitting and licensing matters to the administrative adjudication division for |
28 | environmental matters. Two (2) fee ranges shall be required: for "Appeal of enforcement actions", |
29 | a range of fifty dollars ($50) to one hundred dollars ($100), and for "Appeal of application |
30 | decisions", a range of five hundred dollars ($500) to ten thousand dollars ($10,000). The monies |
31 | from the administrative adjudication fees will be deposited as general revenues and the amounts |
32 | appropriated shall be used for the costs associated with operating the administrative adjudication |
33 | division. |
34 | There is hereby established an account within the general fund to be called the water and |
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1 | air protection program. The account shall consist of sums appropriated for water and air pollution |
2 | control and waste-monitoring programs and the state controller is hereby authorized and directed |
3 | to draw his or her orders upon the general treasurer for the payment of the sums, or portions thereof, |
4 | as may be required, from time to time, upon receipt by him or her of properly authenticated |
5 | vouchers. All amounts collected under the authority of this subdivision for the sewage-disposal- |
6 | system program and freshwaters wetlands program will be deposited as general revenues and the |
7 | amounts appropriated shall be used for the purposes of administering and operating the programs. |
8 | The director shall submit to the house fiscal advisor and the senate fiscal advisor by January 15 of |
9 | each year a detailed report on the amount of funds obtained from fines and fees and the uses made |
10 | of the funds. |
11 | (27) To establish and maintain a list or inventory of areas within the state worthy of special |
12 | designation as "scenic" to include, but not be limited to, certain state roads or highways, scenic |
13 | vistas, and scenic areas, and to make the list available to the public; |
14 | (28) To establish and maintain an inventory of all interests in land held by public and |
15 | private land trust and to exercise all powers vested herein to ensure the preservation of all identified |
16 | lands; |
17 | (i) The director may promulgate and enforce rules and regulations to provide for the orderly |
18 | and consistent protection, management, continuity of ownership and purpose, and centralized |
19 | records-keeping for lands, water, and open spaces owned in fee or controlled in full or in part |
20 | through other interests, rights, or devices such as conservation easements or restrictions, by private |
21 | and public land trusts in Rhode Island. The director may charge a reasonable fee for filing of each |
22 | document submitted by a land trust; |
23 | (ii) The term "public land trust" means any public instrumentality created by a Rhode Island |
24 | municipality for the purposes stated herein and financed by means of public funds collected and |
25 | appropriated by the municipality. The term "private land trust" means any group of five (5) or more |
26 | private citizens of Rhode Island who shall incorporate under the laws of Rhode Island as a |
27 | nonbusiness corporation for the purposes stated herein, or a national organization such as the nature |
28 | conservancy. The main purpose of either a public or a private land trust shall be the protection, |
29 | acquisition, or control of land, water, wildlife, wildlife habitat, plants, and/or other natural features, |
30 | areas, or open space for the purpose of managing or maintaining, or causing to be managed or |
31 | maintained by others, the land, water, and other natural amenities in any undeveloped and relatively |
32 | natural state in perpetuity. A private land trust must be granted exemption from federal income tax |
33 | under Internal Revenue Code 501(c)(3) [26 U.S.C. § 501(c)(3)] within two (2) years of its |
34 | incorporation in Rhode Island or it may not continue to function as a land trust in Rhode Island. A |
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1 | private land trust may not be incorporated for the exclusive purpose of acquiring or accepting |
2 | property or rights in property from a single individual, family, corporation, business, partnership, |
3 | or other entity. Membership in any private land trust must be open to any individual subscribing to |
4 | the purposes of the land trust and agreeing to abide by its rules and regulations including payment |
5 | of reasonable dues; |
6 | (iii)(A) Private land trusts will, in their articles of association or their bylaws, as |
7 | appropriate, provide for the transfer to an organization, created for the same or similar purposes, of |
8 | the assets, lands and land rights, and interests held by the land trust in the event of termination or |
9 | dissolution of the land trust. |
10 | (B) All land trusts, public and private, will record in the public records, of the appropriate |
11 | towns and cities in Rhode Island, all deeds, conservation easements, or restrictions or other interests |
12 | and rights acquired in land and will also file copies of all such documents and current copies of |
13 | their articles of association, their bylaws, and their annual reports with the secretary of state and |
14 | with the director of the Rhode Island department of environmental management. The director is |
15 | hereby directed to establish and maintain permanently a system for keeping records of all private |
16 | and public land trust land holdings in Rhode Island. |
17 | (29) The director will contact in writing, not less often than once every two (2) years, each |
18 | public or private land trust to ascertain: that all lands held by the land trust are recorded with the |
19 | director; the current status and condition of each land holding; that any funds or other assets of the |
20 | land trust held as endowment for specific lands have been properly audited at least once within the |
21 | two-year (2) period; the name of the successor organization named in the public or private land |
22 | trust's bylaws or articles of association; and any other information the director deems essential to |
23 | the proper and continuous protection and management of land and interests or rights in land held |
24 | by the land trust. In the event that the director determines that a public or private land trust holding |
25 | land or interest in land appears to have become inactive, he or she shall initiate proceedings to |
26 | effect the termination of the land trust and the transfer of its lands, assets, land rights, and land |
27 | interests to the successor organization named in the defaulting trust's bylaws or articles of |
28 | association or to another organization created for the same or similar purposes. Should such a |
29 | transfer not be possible, then the land trust, assets, and interest and rights in land will be held in |
30 | trust by the state of Rhode Island and managed by the director for the purposes stated at the time |
31 | of original acquisition by the trust. Any trust assets or interests other than land or rights in land |
32 | accruing to the state under such circumstances will be held and managed as a separate fund for the |
33 | benefit of the designated trust lands; |
34 | (30) Consistent with federal standards, issue and enforce such rules, regulations, and orders |
| LC000637/SUB A - Page 12 of 18 |
1 | as may be necessary to establish requirements for maintaining evidence of financial responsibility |
2 | for taking corrective action and compensating third parties for bodily injury and property damage |
3 | caused by sudden and non-sudden accidental releases arising from operating underground storage |
4 | tanks; |
5 | (31) To enforce, by such means as provided by law, the standards for the quality of air, and |
6 | water, and the location, design, construction, and operation of all underground storage facilities |
7 | used for storing petroleum products or hazardous materials; any order or notice issued by the |
8 | director relating to the location, design, construction, operation, or maintenance of an underground |
9 | storage facility used for storing petroleum products or hazardous materials shall be eligible for |
10 | recordation under chapter 13 of title 34. The director shall forward the order or notice to the city or |
11 | town wherein the subject facility is located, and the order or notice shall be recorded in the general |
12 | index by the appropriate municipal officer in the land-evidence records in the city or town wherein |
13 | the subject facility is located. Any subsequent transferee of that facility shall be responsible for |
14 | complying with the requirements of the order or notice. Upon satisfactory completion of the |
15 | requirements of the order or notice, the director shall provide written notice of the same, which |
16 | notice shall be eligible for recordation. The original, written notice shall be forwarded to the city |
17 | or town wherein the subject facility is located, and the notice of satisfactory completion shall be |
18 | recorded in the general index by the appropriate municipal official in the land-evidence records in |
19 | the city or town wherein the subject facility is located. A copy of the written notice shall be |
20 | forwarded to the owner of the subject facility within five (5) days of a request for it, and, in any |
21 | event, shall be forwarded to the owner of the subject facility within thirty (30) days after correction; |
22 | (32) To manage and disburse any and all funds collected pursuant to § 46-12.9-4, in |
23 | accordance with § 46-12.9-5, and other provisions of the Rhode Island Underground Storage Tank |
24 | Financial Responsibility Act, as amended; |
25 | (33) To support, facilitate, and assist the Rhode Island Natural History Survey, as |
26 | appropriate and/or as necessary, in order to accomplish the important public purposes of the survey |
27 | in gathering and maintaining data on Rhode Island natural history; making public presentations and |
28 | reports on natural history topics; ranking species and natural communities; monitoring rare species |
29 | and communities; consulting on open-space acquisitions and management plans; reviewing |
30 | proposed federal and state actions and regulations with regard to their potential impact on natural |
31 | communities; and seeking outside funding for wildlife management, land management, and |
32 | research; |
33 | (34) To promote the effective stewardship of lakes, ponds, rivers, and streams including, |
34 | but not limited to, collaboration with watershed organizations and associations of lakefront property |
| LC000637/SUB A - Page 13 of 18 |
1 | owners on planning and management actions that will prevent and mitigate water quality |
2 | degradation, reduce the loss of native habitat due to infestation of non-native species, abate |
3 | nuisance conditions that result from excessive growth of algal or non-native plant species as well |
4 | as promote healthy freshwater riverine ecosystems; |
5 | (35) In implementing the programs established pursuant to this chapter, to identify critical |
6 | areas for improving service to customers doing business with the department, and to develop and |
7 | implement strategies to improve performance and effectiveness in those areas. Key aspects of a |
8 | customer-service program shall include, but not necessarily be limited to, the following |
9 | components: |
10 | (a) Maintenance of an organizational unit within the department with the express purpose |
11 | of providing technical assistance to customers and helping customers comply with environmental |
12 | regulations and requirements; |
13 | (b) Maintenance of an employee-training program to promote customer service across the |
14 | department; |
15 | (c) Implementation of a continuous business process evaluation and improvement effort, |
16 | including process reviews to encourage development of quality proposals; ensure timely and |
17 | predictable reviews; and result in effective decisions and consistent follow up and implementation |
18 | throughout the department; and publish an annual report on such efforts; |
19 | (d) Creation of a centralized location for the acceptance of permit applications and other |
20 | submissions to the department; |
21 | (e) Maintenance of a process to promote, organize, and facilitate meetings prior to the |
22 | submission of applications or other proposals in order to inform the applicant on options and |
23 | opportunities to minimize environmental impact; improve the potential for sustainable |
24 | environmental compliance; and support an effective and efficient review and decision-making |
25 | process on permit applications related to the proposed project; |
26 | (f) Development of single permits under multiple authorities otherwise provided in state |
27 | law to support comprehensive and coordinated reviews of proposed projects. The director may |
28 | address and resolve conflicting or redundant process requirements in order to achieve an effective |
29 | and efficient review process that meets environmental objectives; and |
30 | (g) Exploration of the use of performance-based regulations coupled with adequate |
31 | inspection and oversight, as an alternative to requiring applications or submissions for approval |
32 | prior to initiation of projects. The department shall work with the office of regulatory reform to |
33 | evaluate the potential for adopting alternative compliance approaches and provide a report to the |
34 | governor and the general assembly by May 1, 2015; |
| LC000637/SUB A - Page 14 of 18 |
1 | (36) To formulate and promulgate regulations requiring any dock or pier longer than twenty |
2 | feet (20') and located on a freshwater lake or pond to be equipped with reflective materials, on all |
3 | sides facing the water, of an appropriate width and luminosity such that it can be seen by operators |
4 | of watercraft; and |
5 | (37) To temporarily waive any control or prohibition respecting the use of a fuel or fuel |
6 | additive required or regulated by the department if the director finds that: |
7 | (i) Extreme or unusual fuel or fuel additive supply circumstances exist in the state or the |
8 | New England region that prevent the distribution of an adequate supply of the fuel or fuel additive |
9 | to consumers; |
10 | (ii) Extreme or unusual fuel or fuel additive supply circumstances are the result of a natural |
11 | disaster, an act of God, a pipeline or refinery equipment failure, or another event that could not |
12 | reasonably have been foreseen; and |
13 | (iii) It is in the public interest to grant the waiver. |
14 | Any temporary waiver shall be made in writing and shall be effective for twenty (20) |
15 | calendar days; provided, that the director may renew the temporary waiver, in writing, if it is |
16 | deemed necessary. |
17 | SECTION 3. Section 23-18.9-11 of the General Laws in Chapter 23-18.9 entitled "Refuse |
18 | Disposal" is hereby amended to read as follows: |
19 | 23-18.9-11. Prosecution of violations -- Relief in equity or by prerogative writ. |
20 | (a) All prosecutions for the criminal violation of any provision of this chapter, or any rule |
21 | or regulation made by the director in conformance with this chapter, shall be by indictment or |
22 | information. The director, without being required to enter into any recognizance or to give surety |
23 | for cost, or the attorney general of his or her own motion, may institute the proceedings in the name |
24 | of the state. It shall be the duty of the attorney general to conduct the criminal prosecution of all |
25 | the proceedings brought by the director pursuant to this chapter. |
26 | (b) The director may obtain relief in equity or by prerogative writ whenever relief shall be |
27 | necessary for the proper performance of his or her duties under this chapter. The superior court for |
28 | Providence County shall have the concurrent jurisdiction in equity to enforce the provisions of this |
29 | chapter and any rule, or regulation or order issued pursuant to made by the director under this |
30 | chapter. Proceedings under this section shall follow the course of equity and shall be instituted and |
31 | prosecuted in the name of the director by the attorney general, but only upon the request of the |
32 | director for enforcement in superior court may be instituted and prosecuted in the name of the |
33 | director, by either the director or by the attorney general, and in any proceeding in which the |
34 | director or the attorney general seeks injunctive relief, it shall not be necessary to show that without |
| LC000637/SUB A - Page 15 of 18 |
1 | this relief, the injury that will result will be irreparable or that the remedy at law is inadequate. |
2 | Proceedings provided for in this section shall be in addition to other administrative or judicial |
3 | proceedings authorized by this chapter or pursuant to any other provision of the general laws or |
4 | common law. |
5 | SECTION 4. Section 23-19.1-15 of the General Laws in Chapter 23-19.1 entitled |
6 | "Hazardous Waste Management" is hereby amended to read as follows: |
7 | 23-19.1-15. Proceedings for enforcement. |
8 | The superior court for Providence county shall have concurrent jurisdiction to enforce the |
9 | provisions of this chapter and any rule, regulation, or order issued pursuant to this chapter. |
10 | Proceedings for enforcement may be instituted and prosecuted in the name of the director, by either |
11 | the director or by the attorney general, and in any proceeding in which the director or the attorney |
12 | general seeks injunctive relief is sought, it shall not be necessary for the director to show that, |
13 | without this relief, the injury which that will result will be irreparable, or that the remedy at law is |
14 | inadequate. Proceedings provided for in this section shall be in addition to other administrative or |
15 | judicial proceedings authorized by this chapter or pursuant to any other provision of the general |
16 | laws or common law. |
17 | SECTION 5. Section 46-12.5.1-12 of the General Laws in Chapter 46-12.5.1 entitled "Oil |
18 | Pollution Control" is hereby amended to read as follows: |
19 | 46-12.5.1-12. Notices of violations and compliance orders. |
20 | (a) The director shall follow the procedures provided in § 42-17.1-2(21) in issuing any |
21 | notice of violation or compliance order authorized pursuant to this chapter or any rules, regulations, |
22 | or permits promulgated thereunder. |
23 | (b) Where an order of the director does not otherwise specify, the person against whom an |
24 | order is entered shall, within seventy-two (72) hours of the receipt of the order and before |
25 | proceeding to install a system or means to contain, abate, control, and remove the discharged oil, |
26 | submit to the director a plan or a statement describing the system or means that the person intends |
27 | to implement. |
28 | (c) Any order or notice issued by the director shall be eligible for recordation under chapter |
29 | 13 of title 34. The director shall forward the original order or notice to the city or town wherein the |
30 | subject property is located and the order or notice shall be recorded in the land evidence records in |
31 | the city or town wherein the subject property is located. Any subsequent transferee of that property |
32 | shall be responsible for complying with the requirements of the order or notice. Upon satisfactory |
33 | completion of the requirements of the order or notice, the director shall provide written notice of |
34 | the same, which notice shall be similarly eligible for recordation. The original written notice shall |
| LC000637/SUB A - Page 16 of 18 |
1 | be forwarded to the city or town wherein the subject property is located and the notice of |
2 | satisfactory completion shall be recorded in the land evidence records in the city or town wherein |
3 | the subject property is located. |
4 | SECTION 6. Section 42-17.6-4 of the General Laws in Chapter 42-17.6 entitled |
5 | "Administrative Penalties for Environmental Violations" is hereby amended to read as follows: |
6 | 42-17.6-4. Right to adjudicatory hearing. |
7 | (a) Whenever the director seeks to assess an administrative penalty on any person other |
8 | than through an expedited citation issued pursuant to subsection 42-17.6-3(c), the person shall have |
9 | the right to an adjudicatory hearing under chapter 35 of this title, the provisions of which shall |
10 | apply except when they are inconsistent with the provisions of this chapter. |
11 | (b) A person shall be deemed to have waived his or her right to an adjudicatory hearing |
12 | unless, within ten (10) twenty (20) days of the date of the director's notice that he or she seeks to |
13 | assess an administrative penalty, the person files with the director or the clerk of the administrative |
14 | adjudication division a written statement denying the occurrence of any of the acts or omissions |
15 | alleged by the director in the notice, or asserting that the money amount of the proposed |
16 | administrative penalty is excessive. In any adjudicatory hearing authorized pursuant to chapter 35 |
17 | of title 42, the director shall, by a preponderance of the evidence, prove the occurrence of each act |
18 | or omission alleged by the director. |
19 | (c) If a person waives his or her right to an adjudicatory hearing, the proposed |
20 | administrative penalty shall be a final agency order immediately upon the waiver. The director may |
21 | institute injunctive proceedings in the superior court for Providence County for enforcement of the |
22 | final administrative penalty as a final agency order. |
23 | SECTION 7. Section 23-19.14-7.1 of the General Laws in Chapter 23-19.14 entitled |
24 | "Industrial Property Remediation and Reuse Act" is hereby amended to read as follows: |
25 | 23-19.14-7.1. Remedial agreements. |
26 | In addition to exemption from liability provided for in § 23-19.14-7, for sites on which a |
27 | remedial decision letter has been issued, the state and a person who has received a remedial decision |
28 | letter may enter into a remedial agreement that includes a covenant not to sue and contribution |
29 | protection and which describes the agreed remedial actions and shall be assignable as therein |
30 | provided. Whenever the state has entered into a remedial agreement under this section, the liability |
31 | to the state under this chapter of each party to the agreement including any future liability to the |
32 | state, arising from the release or threatened release that is the subject of the agreement shall be |
33 | limited as provided in the agreement pursuant to a covenant not to sue. The final covenant not to |
34 | sue may, at the discretion of the state, be transferred to successors or assigns that are not otherwise |
| LC000637/SUB A - Page 17 of 18 |
1 | found to be a responsible party under § 23-19.14-6. The covenant not to sue may provide that future |
2 | liability to the state of a person who is under the remedial agreement may be limited to the same |
3 | proportion as that established in the original agreement. A remedial agreement shall be distinct |
4 | from a letter of compliance, and the absence of a remedial agreement shall not affect or compromise |
5 | exemption to liability provided for in § 23-19.14-7. |
6 | SECTION 8. Section 23-23-6 of the General Laws in Chapter 23-23 entitled "Air |
7 | Pollution" is hereby amended to read as follows: |
8 | 23-23-6. Investigation and hearing of complaint of pollution -- Public disclosure. |
9 | (a) If the director shall have cause to believe that any person is violating any provision of |
10 | this chapter or rule or regulation or any order made under this chapter, it shall be the duty of the |
11 | director to cause the matter to be investigated. Except as provided in § 23-23-16, before making |
12 | any finding that a violation has occurred, that person shall be granted a hearing. At all hearings, the |
13 | director shall receive evidence and hear witnesses in behalf of the person believed to be causing air |
14 | pollution. the director shall follow the procedures provided in § 42-17.1-2(21) in issuing any notice |
15 | of violation or compliance order authorized pursuant to this chapter or any rules, regulations, or |
16 | permits promulgated thereunder. |
17 | (b) The director shall maintain records concerning all investigations undertaken and |
18 | findings made pursuant to this section. Those records shall be made available for public inspection |
19 | and shall include the following information: |
20 | (1) The names and addresses of persons investigated; |
21 | (2) The date or dates of any hearing or hearings conducted with respect to those persons |
22 | and the time and place of the hearings; |
23 | (3) Any findings made by the director after the conclusion of the hearings. |
24 | SECTION 9. This act shall take effect upon passage. |
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LC000637/SUB A | |
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| LC000637/SUB A - Page 18 of 18 |
EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO WATERS AND NAVIGATION -- STATE AFFAIRS AND GOVERNMENT -- | |
HEALTH AND SAFETY | |
*** | |
1 | This act would update and modernize the Department of Environmental Management’s |
2 | ability to enforce environmental laws, and more specifically modifies practices regarding a Notice |
3 | of Violation. |
4 | This act would take effect upon passage. |
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LC000637/SUB A | |
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| LC000637/SUB A - Page 19 of 18 |