2013 -- H 5677 SUBSTITUTE A

=======

LC01498/SUB A

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

     Introduced By: Representatives Valencia, Amore, Handy, Cimini, and Tanzi

     Date Introduced: February 27, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Section 42-17.1-2 of the General Laws in Chapter 42-17.1 entitled

1-2

“Department of Environmental Management” is hereby amended to read as follows:

1-3

     42-17.1-2. Powers and duties. -- The director of environmental management shall have

1-4

the following powers and duties:

1-5

     (1) To supervise and control the protection, development, planning, and utilization of the

1-6

natural resources of the state, such resources, including but not limited to, water, plants, trees,

1-7

soil, clay, sand, gravel, rocks and other minerals, air, mammals, birds, reptiles, amphibians, fish,

1-8

shellfish, and other forms of aquatic, insect, and animal life;

1-9

     (2) To exercise all functions, powers, and duties heretofore vested in the department of

1-10

agriculture and conservation, and in each of the divisions of the department, such as the

1-11

promotion of agriculture and animal husbandry in their several branches, including the inspection

1-12

and suppression of contagious diseases among animals, the regulation of the marketing of farm

1-13

products, the inspection of orchards and nurseries, the protection of trees and shrubs from

1-14

injurious insects and diseases, protection from forest fires, the inspection of apiaries and the

1-15

suppression of contagious diseases among bees, prevention of the sale of adulterated or

1-16

misbranded agricultural seeds, promotion and encouragement of the work of farm bureaus in

1-17

cooperation with the University of Rhode Island, farmers' institutes and the various organizations

1-18

established for the purpose of developing an interest in agriculture, together with such other

1-19

agencies and activities as the governor and the general assembly may from time to time place

2-1

under the control of the department, and as heretofore vested by such of the following chapters

2-2

and sections of the general laws as are presently applicable to the department of environmental

2-3

management and which were previously applicable to the department of natural resources and the

2-4

department of agriculture and conservation or to any of its divisions: chapters 1 through 22,

2-5

inclusive, as amended, in title 2 entitled "Agriculture and Forestry;" chapters 1 through 17,

2-6

inclusive, as amended, in title 4 entitled "Animals and Animal Husbandry;" chapters 1 through

2-7

19, inclusive, as amended, in title 20 entitled "Fish and Wildlife;" chapters 1 through 32,

2-8

inclusive, as amended, in title 21 entitled "Food and Drugs;" chapter 7 of title 23 as amended,

2-9

entitled "Mosquito Abatement;" and by any other general or public law relating to the department

2-10

of agriculture and conservation or to any of its divisions or bureaus;

2-11

     (3) To exercise all the functions, powers, and duties heretofore vested in the division of

2-12

parks and recreation of the department of public works by chapters 1, 2, and 5 in title 32 entitled

2-13

"Parks and Recreational Areas;" by chapter 22.5 of title 23, as amended, entitled "Drowning

2-14

Prevention and Lifesaving;" and by any other general or public law relating to the division of

2-15

parks and recreation;

2-16

     (4) To exercise all the functions, powers, and duties heretofore vested in the division of

2-17

harbors and rivers of the department of public works, or in the department itself by such as were

2-18

previously applicable to the division or the department, of chapters 1 through 22 and sections

2-19

thereof, as amended, in title 46 entitled "Waters and Navigation"; and by any other general or

2-20

public law relating to the division of harbors and rivers;

2-21

     (5) To exercise all the functions, powers and duties heretofore vested in the department of

2-22

health by chapters 25, 18.9, and 19.5 of title 23, as amended, entitled "Health and Safety;" and by

2-23

chapters 12 and 16 of title 46, as amended, entitled "Waters and Navigation"; by chapters 3, 4, 5,

2-24

6, 7, 9, 11, 13, 18, and 19 of title 4, as amended, entitled "Animals and Animal Husbandry;" and

2-25

those functions, powers, and duties specifically vested in the director of environmental

2-26

management by the provisions of § 21-2-22, as amended, entitled "Inspection of Animals and

2-27

Milk;" together with other powers and duties of the director of the department of health as are

2-28

incidental to or necessary for the performance of the functions transferred by this section;

2-29

     (6) To cooperate with the Rhode Island economic development corporation in its

2-30

planning and promotional functions, particularly in regard to those resources relating to

2-31

agriculture, fisheries, and recreation;

2-32

     (7) To cooperate with, advise, and guide conservation commissions of cities and towns

2-33

created under chapter 35 of title 45 entitled "Conservation Commissions", as enacted by chapter

2-34

203 of the Public Laws, 1960;

3-1

     (8) To assign or reassign, with the approval of the governor, any functions, duties, or

3-2

powers established by this chapter to any agency within the department, except as hereinafter

3-3

limited;

3-4

     (9) To cooperate with the water resources board and to provide to the board facilities,

3-5

administrative support, staff services, and such other services as the board shall reasonably

3-6

require for its operation and, in cooperation with the board and the statewide planning program to

3-7

formulate and maintain a long range guide plan and implementing program for development of

3-8

major water sources transmissions systems needed to furnish water to regional and local

3-9

distribution systems;

3-10

     (10) To cooperate with the solid waste management corporation and to provide to the

3-11

corporation such facilities, administrative support, staff services and such other services within

3-12

the department as the corporation shall reasonably require for its operation;

3-13

     (11) To provide for the maintenance of waterways and boating facilities, consistent with

3-14

chapter 6.1 of title 46, by: (i) establishing minimum standards for upland beneficial use and

3-15

disposal of dredged material; (ii) promulgating and enforcing rules for water quality, ground

3-16

water protection, and fish and wildlife protection pursuant to § 42-17.1-24; (iii) planning for the

3-17

upland beneficial use and/or disposal of dredged material in areas not under the jurisdiction of the

3-18

council pursuant to § 46-23-6(2); and (iv) cooperating with the coastal resources management

3-19

council in the development and implementation of comprehensive programs for dredging as

3-20

provided for in §§ 46-23-6(1)(ii)(H) and 46-23-18.3; and (v) monitoring dredge material

3-21

management and disposal sites in accordance with the protocols established pursuant to § 46-6.1-

3-22

5(3) and the comprehensive program provided for in § 46-23-6(1)(ii)(H); no powers or duties

3-23

granted herein shall be construed to abrogate the powers or duties granted to the coastal resources

3-24

management council under chapter 23 of title 46, as amended;

3-25

     (12) To establish minimum standards, subject to the approval of the environmental

3-26

standards board, relating to the location, design, construction and maintenance of all sewage

3-27

disposal systems;

3-28

     (13) To enforce, by such means as provided by law, the standards for the quality of air,

3-29

and water, and the design, construction and operation of all sewage disposal systems; any order or

3-30

notice issued by the director relating to the location, design, construction or maintenance of a

3-31

sewage disposal system shall be eligible for recordation under chapter 13 of title 34. The director

3-32

shall forward the order or notice to the city or town wherein the subject property is located and

3-33

the order or notice shall be recorded in the general index by the appropriate municipal official in

3-34

the land evidence records in the city or town wherein the subject property is located. Any

4-1

subsequent transferee of that property shall be responsible for complying with the requirements of

4-2

the order or notice. Upon satisfactory completion of the requirements of the order or notice, the

4-3

director shall provide written notice of the same, which notice shall be similarly eligible for

4-4

recordation. The original written notice shall be forwarded to the city or town wherein the subject

4-5

property is located and the notice of satisfactory completion shall be recorded in the general index

4-6

by the appropriate municipal official in the land evidence records in the city or town wherein the

4-7

subject property is located. A copy of the written notice shall be forwarded to the owner of the

4-8

subject property within five (5) days of a request for it, and, in any event, shall be forwarded to

4-9

the owner of the subject property within thirty (30) days after correction;

4-10

     (14) To establish minimum standards for the establishment and maintenance of salutary

4-11

environmental conditions, including standards and methods for the assessment and the

4-12

consideration of the cumulative effects on the environment of regulatory actions and decisions,

4-13

which standards for consideration of cumulative effects shall provide for: (i) evaluation of

4-14

potential cumulative effects that could adversely effect public health and/or impair ecological

4-15

functioning; (ii) analysis of such other matters relative to cumulative effects as the department

4-16

may deem appropriate in fulfilling its duties, functions and powers; which standards and methods

4-17

shall only be applicable to ISDS systems in the town of Jamestown in areas that are dependent for

4-18

water supply on private and public wells, unless broader use is approved by the general assembly.

4-19

The department shall report to the general assembly not later than March 15, 2008 with regard to

4-20

the development and application of such standards and methods in Jamestown.

4-21

     (15) To establish and enforce minimum standards for permissible types of septage,

4-22

industrial waste disposal sites and waste oil disposal sites;

4-23

     (16) To establish minimum standards subject to the approval of the environmental

4-24

standards board for permissible types of refuse disposal facilities, the design, construction,

4-25

operation, and maintenance of disposal facilities; and the location of various types of facilities;

4-26

     (17) To exercise all functions, powers, and duties necessary for the administration of

4-27

chapter 19.1 of title 23 entitled "Rhode Island Hazardous Waste Management Act";

4-28

     (18) To designate in writing any person in any department of the state government or any

4-29

official of a district, county, city, town, or other governmental unit, with that official's consent, to

4-30

enforce any rule, regulation, or order promulgated and adopted by the director under any

4-31

provision of law; provided, however, that enforcement of powers of the coastal resources

4-32

management council shall be assigned only to employees of the department of environmental

4-33

management, except by mutual agreement or as otherwise provided in chapter 23 of title 46;

5-34

     (19) To issue and enforce such rules, regulations, and orders as may be necessary to carry

5-35

out the duties assigned to the director and the department by any provision of law; and to conduct

5-36

such investigations and hearings and to issue, suspend, and revoke such licenses as may be

5-37

necessary to enforce those rules, regulations, and orders.

5-38

     Notwithstanding the provisions of § 42-35-9 to the contrary, no informal disposition of a

5-39

contested licensing matter shall occur where resolution substantially deviates from the original

5-40

application unless all interested parties shall be notified of said proposed resolution and provided

5-41

with opportunity to comment upon said resolution pursuant to applicable law and any rules and

5-42

regulations established by the director.

5-43

     (20) To enter, examine or survey at any reasonable time such places as the director deems

5-44

necessary to carry out his or her responsibilities under any provision of law subject to the

5-45

following provisions:

5-46

     (i) For criminal investigations, the director shall, pursuant to chapter 5 of title 12, seek a

5-47

search warrant from an official of a court authorized to issue warrants, unless a search without a

5-48

warrant is otherwise allowed or provided by law;

5-49

     (ii) All administrative inspections shall be conducted pursuant to administrative

5-50

guidelines promulgated by the department in accordance with chapter 35 of title 42.

5-51

     (B) A warrant shall not be required for administrative inspections if conducted under the

5-52

following circumstances, in accordance with the applicable constitutional standards:

5-53

     (I) For closely regulated industries;

5-54

     (II) In situations involving open fields or conditions that are in plain view;

5-55

     (III) In emergency situations;

5-56

     (IV) In situations presenting an imminent threat to the environment or public health,

5-57

safety or welfare;

5-58

     (V) If the owner, operator, or agent in charge of the facility, property, site or location

5-59

consents; or

5-60

     (VI) In other situations in which a warrant is not constitutionally required.

5-61

     (C) Whenever it shall be constitutionally or otherwise required by law, or whenever the

5-62

director in his or her discretion deems it advisable, an administrative search warrant, or its

5-63

functional equivalent, may be obtained by the director from a neutral magistrate for the purpose

5-64

of conducting an administrative inspection. The warrant shall be issued in accordance with the

5-65

applicable constitutional standards for the issuance of administrative search warrants. The

5-66

administrative standard of probable cause, not the criminal standard of probable cause, shall

5-67

apply to applications for administrative search warrants.

6-68

     (I) The need for, or reliance upon, an administrative warrant shall not be construed as

6-69

requiring the department to forfeit the element of surprise in its inspection efforts.

6-70

     (II) An administrative warrant issued pursuant to this subsection must be executed and

6-71

returned within ten (10) days of its issuance date unless, upon a showing of need for additional

6-72

time, the court orders otherwise.

6-73

     (III) An administrative warrant may authorize the review and copying of documents that

6-74

are relevant to the purpose of the inspection. If documents must be seized for the purpose of

6-75

copying, and the warrant authorizes such seizure, the person executing the warrant shall prepare

6-76

an inventory of the documents taken. The time, place and manner regarding the making of the

6-77

inventory shall be set forth in the terms of the warrant itself, as dictated by the court. A copy of

6-78

the inventory shall be delivered to the person from whose possession or facility the documents

6-79

were taken. The seized documents shall be copied as soon as feasible under circumstances

6-80

preserving their authenticity, then returned to the person from whose possession or facility the

6-81

documents were taken.

6-82

     (IV) An administrative warrant may authorize the taking of samples of air, water or soil

6-83

or of materials generated, stored or treated at the facility, property, site or location. Upon request,

6-84

the department shall make split samples available to the person whose facility, property, site or

6-85

location is being inspected.

6-86

     (V) Service of an administrative warrant may be required only to the extent provided for

6-87

in the terms of the warrant itself, by the issuing court.

6-88

     (D) Penalties. Any willful and unjustified refusal of right of entry and inspection to

6-89

department personnel pursuant to an administrative warrant shall constitute a contempt of court

6-90

and shall subject the refusing party to sanctions, which in the court's discretion may result in up to

6-91

six (6) months imprisonment and/or a monetary fine of up to ten thousand dollars ($10,000) per

6-92

refusal.

6-93

     (21) To give notice of an alleged violation of law to the person responsible therefor

6-94

whenever the director determines that there are reasonable grounds to believe that there is a

6-95

violation of any provision of law within his or her jurisdiction or of any rule or regulation adopted

6-96

pursuant to authority granted to him or her, unless other notice and hearing procedure is

6-97

specifically provided by that law. Nothing in this chapter shall limit the authority of the attorney

6-98

general to prosecute offenders as required by law.

6-99

     (i) The notice shall provide for a time within which the alleged violation shall be

6-100

remedied, and shall inform the person to whom it is directed that a written request for a hearing

6-101

on the alleged violation may be filed with the director within ten (10) days after service of the

6-102

notice. The notice will be deemed properly served upon a person if a copy thereof is served him

7-1

or her personally, or sent by registered or certified mail to his or her last known address, or if he

7-2

or she is served with notice by any other method of service now or hereafter authorized in a civil

7-3

action under the laws of this state. If no written request for a hearing is made to the director

7-4

within ten (10) days of the service of notice, the notice shall automatically become a compliance

7-5

order.

7-6

     (ii) (A) Whenever the director determines that there exists a violation of any law, rule, or

7-7

regulation within his or her jurisdiction which requires immediate action to protect the

7-8

environment, he or she may, without prior notice of violation or hearing, issue an immediate

7-9

compliance order stating the existence of the violation and the action he or she deems necessary.

7-10

The compliance order shall become effective immediately upon service or within such time as is

7-11

specified by the director in such order. No request for a hearing on an immediate compliance

7-12

order may be made.

7-13

     (B) Any immediate compliance order issued under this section without notice and prior

7-14

hearing shall be effective for no longer than forty-five (45) days; provided, however, that for

7-15

good cause shown the order may be extended one additional period not exceeding forty-five (45)

7-16

days.

7-17

     (iii) The director may, at his or her discretion and for the purposes of timely and effective

7-18

resolution and return to compliance, cite a person for alleged noncompliance through the issuance

7-19

of an expedited citation in accordance with subsection 42-17.6-3(c).

7-20

     (iii) (iv) If a person upon whom a notice of violation has been served under the provisions

7-21

of this section or if a person aggrieved by any such notice of violation requests a hearing before

7-22

the director within ten (10) days of the service of notice of violation, the director shall set a time

7-23

and place for the hearing, and shall give the person requesting that hearing at least five (5) days

7-24

written notice thereof. After the hearing, the director may make findings of fact and shall sustain,

7-25

modify, or withdraw the notice of violation. If the director sustains or modifies the notice, that

7-26

decision shall be deemed a compliance order and shall be served upon the person responsible in

7-27

any manner provided for the service of the notice in this section.

7-28

     (iv) (v) The compliance order shall state a time within which the violation shall be

7-29

remedied, and the original time specified in the notice of violation shall be extended to the time

7-30

set in the order.

7-31

     (v) (vi) Whenever a compliance order has become effective, whether automatically where

7-32

no hearing has been requested, where an immediate compliance order has been issued, or upon

7-33

decision following a hearing, the director may institute injunction proceedings in the superior

7-34

court of the state for enforcement of the compliance order and for appropriate temporary relief,

8-1

and in that proceeding the correctness of a compliance order shall be presumed and the person

8-2

attacking the order shall bear the burden of proving error in the compliance order, except that the

8-3

director shall bear the burden of proving in the proceeding the correctness of an immediate

8-4

compliance order. The remedy provided for in this section shall be cumulative and not exclusive

8-5

and shall be in addition to remedies relating to the removal or abatement of nuisances or any

8-6

other remedies provided by law.

8-7

     (vi) (vii) Any party aggrieved by a final judgment of the superior court may, within thirty

8-8

(30) days from the date of entry of such judgment, petition the supreme court for a writ of

8-9

certiorari to review any questions of law. The petition shall set forth the errors claimed. Upon the

8-10

filing of the petition with the clerk of the supreme court, the supreme court may, if it sees fit,

8-11

issue its writ of certiorari;

8-12

     (22) To impose administrative penalties in accordance with the provisions of chapter 17.6

8-13

of this title and to direct that such penalties be paid into the account established by subdivision

8-14

(26); and

8-15

     (23) The following definitions shall apply in the interpretation of the provisions of this

8-16

chapter:

8-17

     (i) Director: The term "director" shall mean the director of environmental management of

8-18

the state of Rhode Island or his or her duly authorized agent.

8-19

     (ii) Person: The term "person" shall include any individual, group of individuals, firm,

8-20

corporation, association, partnership or private or public entity, including a district, county, city,

8-21

town, or other governmental unit or agent thereof, and in the case of a corporation, any individual

8-22

having active and general supervision of the properties of such corporation.

8-23

     (iii) Service: (A)  Service upon a corporation under this section shall be deemed to

8-24

include service upon both the corporation and upon the person having active and general

8-25

supervision of the properties of such corporation.

8-26

     (B) For purposes of calculating the time within which a claim for a hearing is made

8-27

pursuant to subdivision (21)(i) of this section heretofore, service shall be deemed to be the date of

8-28

receipt of such notice or three (3) days from the date of mailing of said notice, whichever shall

8-29

first occur.

8-30

     (24) To conduct surveys of the present private and public camping and other recreational

8-31

areas available and to determine the need for and location of such other camping and recreational

8-32

areas as may be deemed necessary and in the public interest of the state of Rhode Island and to

8-33

report back its findings on an annual basis to the general assembly on or before March 1 of every

8-34

year;

9-1

     (ii) Additionally, the director of the department of environmental management shall take

9-2

such additional steps, including but not limited to, matters related to funding as may be necessary

9-3

to establish such other additional recreational facilities and areas as are deemed to be in the public

9-4

interest.

9-5

     (25) To apply for and accept grants and bequests of funds with the approval of the

9-6

director of administration from other states, interstate agencies and independent authorities, and

9-7

private firms, individuals and foundations, for the purpose of carrying out his or her lawful

9-8

responsibilities. The funds shall be deposited with the general treasurer in a restricted receipt

9-9

account created in the Natural Resources Program for funds made available for that program's

9-10

purposes or in a restricted receipt account created in the Environmental Protection Program for

9-11

funds made available for that program's purposes. All expenditures from the accounts shall be

9-12

subject to appropriation by the general assembly, and shall be expended in accordance with the

9-13

provisions of the grant or bequest. In the event that a donation or bequest is unspecified or in the

9-14

event that the trust account balance shows a surplus after the project as provided for in the grant

9-15

or bequest has been completed, the director may utilize said appropriated unspecified or

9-16

appropriated surplus funds for enhanced management of the department's forest and outdoor

9-17

public recreation areas, or other projects or programs that promote the accessibility of recreational

9-18

opportunities for Rhode Island residents and visitors.

9-19

     (ii) The director shall submit to the house fiscal advisor and the senate fiscal advisor, by

9-20

October 1 of each year, a detailed report on the amount of funds received and the uses made of

9-21

such funds.

9-22

     (26) To establish fee schedules by regulation with the approval of the governor for the

9-23

processing of applications and the performing of related activities in connection with the

9-24

department's responsibilities pursuant to subdivision (12) of this section, chapter 19.1 of title 23

9-25

as it relates to inspections performed by the department to determine compliance with chapter

9-26

19.1 and rules and regulations promulgated in accordance therewith, chapter 18.9 of title 23 as it

9-27

relates to inspections performed by the department to determine compliance with chapter 18.9

9-28

and the rules and regulations promulgated in accordance therewith, chapters 19.5 and 23 of title

9-29

23; chapter 12 of title 46 insofar as it relates to water quality certifications and related reviews

9-30

performed pursuant to provisions of the federal Clean Water Act, the regulation and

9-31

administration of underground storage tanks and all other programs administered under chapter

9-32

12 of title 46 and § 2-1-18 et seq., and chapter 13.1 of title 46 and chapter 13.2 of title 46 insofar

9-33

as they relate to any reviews and related activities performed under the provisions of the

9-34

Groundwater Protection Act, chapter 23-24.9 as it relates to the regulation and administration of

10-1

mercury-added products, and chapter 17.7 of this title insofar as it relates to administrative

10-2

appeals of all enforcement, permitting and licensing matters to the administrative adjudication

10-3

division for environmental matters. Two (2) fee ranges shall be required: for "Appeal of

10-4

enforcement actions", a range of fifty dollars ($50) to one hundred dollars ($100), and for

10-5

"Appeal of application decisions", a range of five hundred dollars ($500) to ten thousand dollars

10-6

($10,000). The monies from the administrative adjudication fees will be deposited as general

10-7

revenues and the amounts appropriated shall be used for the costs associated with operating the

10-8

administrative adjudication division.

10-9

     There is hereby established an account within the general fund to be called the water and

10-10

air protection program. The account shall consist of sums appropriated for water and air pollution

10-11

control and waste monitoring programs and the state controller is hereby authorized and directed

10-12

to draw his or her orders upon the general treasurer for the payment of such sums or such portions

10-13

thereof as may be required from time to time upon receipt by him or her of properly authenticated

10-14

vouchers. All amounts collected under the authority of this subdivision for the sewage disposal

10-15

system program and fresh waters wetlands program will be deposited as general revenues and the

10-16

amounts appropriated shall be used for the purposes of administering and operating the programs.

10-17

The director shall submit to the house fiscal advisor and the senate fiscal advisor by January 15 of

10-18

each year a detailed report on the amount of funds obtained from fines and fees and the uses made

10-19

of such funds.

10-20

     (27) To establish and maintain a list or inventory of areas within the state worthy of

10-21

special designation as "scenic" to include, but not be limited to, certain state roads or highways,

10-22

scenic vistas and scenic areas, and to make the list available to the public.

10-23

     (28) To establish and maintain an inventory of all interests in land held by public and

10-24

private land trust and to exercise all powers vested herein to insure the preservation of all

10-25

identified lands.

10-26

     (i) The director may promulgate and enforce rules and regulations to provide for the

10-27

orderly and consistent protection, management, continuity of ownership and purpose, and

10-28

centralized records-keeping for lands, water, and open spaces owned in fee or controlled in full or

10-29

in part through other interests, rights, or devices such as conservation easements or restrictions,

10-30

by private and public land trusts in Rhode Island. The director may charge a reasonable fee for

10-31

filing of each document submitted by a land trust.

10-32

     (ii) The term "public land trust" means any public instrumentality created by a Rhode

10-33

Island municipality for the purposes stated herein and financed by means of public funds

10-34

collected and appropriated by the municipality. The term "private land trust" means any group of

11-1

five (5) or more private citizens of Rhode Island who shall incorporate under the laws of Rhode

11-2

Island as a nonbusiness corporation for the purposes stated herein, or a national organization such

11-3

as the nature conservancy. The main purpose of either a public or a private land trust shall be the

11-4

protection, acquisition, or control of land, water, wildlife, wildlife habitat, plants, and/or other

11-5

natural features, areas, or open space for the purpose of managing or maintaining, or causing to

11-6

be managed or maintained by others, the land, water, and other natural amenities in any

11-7

undeveloped and relatively natural state in perpetuity. A private land trust must be granted

11-8

exemption from federal income tax under Internal Revenue Code 501c(3) [26 U.S.C. § 501(c)(3)]

11-9

within two (2) years of its incorporation in Rhode Island or it may not continue to function as a

11-10

land trust in Rhode Island. A private land trust may not be incorporated for the exclusive purpose

11-11

of acquiring or accepting property or rights in property from a single individual, family,

11-12

corporation, business, partnership, or other entity. Membership in any private land trust must be

11-13

open to any individual subscribing to the purposes of the land trust and agreeing to abide by its

11-14

rules and regulations including payment of reasonable dues.

11-15

     (iii) Private land trusts will, in their articles of association or their bylaws, as appropriate,

11-16

provide for the transfer to an organization created for the same or similar purposes the assets,

11-17

lands and land rights and interests held by the land trust in the event of termination or dissolution

11-18

of the land trust.

11-19

     (B) All land trusts, public and private, will record in the public records of the appropriate

11-20

towns and cities in Rhode Island all deeds, conservation easements or restrictions or other

11-21

interests and rights acquired in land and will also file copies of all such documents and current

11-22

copies of their articles of association, their bylaws, and annual reports with the secretary of state,

11-23

and with the director of the Rhode Island department of environmental management. The director

11-24

is hereby directed to establish and maintain permanently a system for keeping records of all

11-25

private and public land trust land holdings in Rhode Island.

11-26

     (29) The director will contact in writing, not less often than once every two (2) years,

11-27

each public or private land trust to ascertain: that all lands held by the land trust are recorded with

11-28

the director; the current status and condition of each land holding; that any funds or other assets

11-29

of the land trust held as endowment for specific lands have been properly audited at least once

11-30

within the two (2) year period; the name of the successor organization named in the public or

11-31

private land trust's bylaws or articles of association; and any other information the director deems

11-32

essential to the proper and continuous protection and management of land and interests or rights

11-33

in land held by the land trust. In the event that the director determines that a public or private land

11-34

trust holding land or interest in land appears to have become inactive, he or she shall initiate

12-1

proceedings to effect the termination of the land trust and the transfer of its lands, assets, land

12-2

rights, and land interests to the successor organization named in the defaulting trust's bylaws or

12-3

articles of association or to another organization created for the same or similar purposes. Should

12-4

such a transfer not be possible, then the land trust, assets, and interest and rights in land will be

12-5

held in trust by the state of Rhode Island and managed by the director for the purposes stated at

12-6

the time of original acquisition by the trust. Any trust assets or interests other than land or rights

12-7

in land accruing to the state under such circumstances will be held and managed as a separate

12-8

fund for the benefit of the designated trust lands.

12-9

     (30) Consistent with federal standards, issue and enforce such rules, regulations and

12-10

orders as may be necessary to establish requirements for maintaining evidence of financial

12-11

responsibility for taking corrective action and compensating third parties for bodily injury and

12-12

property damage caused by sudden and non-sudden accidental releases arising from operating

12-13

underground storage tanks.

12-14

     (31) To enforce, by such means as provided by law, the standards for the quality of air,

12-15

and water, and the location, design, construction and operation of all underground storage

12-16

facilities used for storing petroleum products or hazardous materials; any order or notice issued

12-17

by the director relating to the location, design construction, operation or maintenance of an

12-18

underground storage facility used for storing petroleum products or hazardous materials shall be

12-19

eligible for recordation under chapter 13 of title 34. The director shall forward the order or notice

12-20

to the city or town wherein the subject facility is located, and the order or notice shall be recorded

12-21

in the general index by the appropriate municipal officer in the land evidence records in the city

12-22

or town wherein the subject facility is located. Any subsequent transferee of that facility shall be

12-23

responsible for complying with the requirements of the order or notice. Upon satisfactory

12-24

completion of the requirements of the order or notice, the director shall provide written notice of

12-25

the same, which notice shall be eligible for recordation. The original written notice shall be

12-26

forwarded to the city or town wherein the subject facility is located, and the notice of satisfactory

12-27

completion shall be recorded in the general index by the appropriate municipal official in the land

12-28

evidence records in the city or town wherein the subject facility is located. A copy of the written

12-29

notice shall be forwarded to the owner of the subject facility within five (5) days of a request for

12-30

it, and, in any event, shall be forwarded to the owner of the subject facility within thirty (30) days

12-31

after correction.

12-32

     (32) To manage and disburse any and all funds collected pursuant to § 46-12.9-4, in

12-33

accordance with § 46-12.9-5, and other provisions of the Rhode Island Underground Storage

12-34

Tank Financial Responsibility Act, as amended.

13-1

     (33) To support, facilitate and assist the Rhode Island Natural History Survey, as

13-2

appropriate and/or as necessary, in order to accomplish the important public purposes of the

13-3

survey in gathering and maintaining data on Rhode Island natural history, making public

13-4

presentations and reports on natural history topics, ranking species and natural communities,

13-5

monitoring rare species and communities, consulting on open space acquisitions and management

13-6

plans, reviewing proposed federal and state actions and regulations with regard to their potential

13-7

impact on natural communities, and seeking outside funding for wildlife management, land

13-8

management and research.

13-9

      (34) To promote the effective stewardship of lakes and ponds including collaboration

13-10

with associations of lakefront property owners on planning and management actions that will

13-11

prevent and mitigate water quality degradation, the loss of native habitat due to infestation of

13-12

non-native species and nuisance conditions that result from excessive growth of algal or non-

13-13

native plant species. By January 31, 2012, the director shall prepare and submit a report to the

13-14

governor and general assembly that based upon available information provides: (a) an assessment

13-15

of lake conditions including a description of the presence and extent of aquatic invasive species in

13-16

lakes and ponds; (b) recommendations for improving the control and management of aquatic

13-17

invasives species in lakes and ponds; and (c) an assessment of the feasibility of instituting a boat

13-18

sticker program for the purpose of generating funds to support implementation actions to control

13-19

aquatic invasive species in the freshwaters of the state.

13-20

      SECTION 2. Sections 42-17.6-3 and 42-17.6-4 of the General Laws in Chapter 42-17.6

13-21

entitled “Administrative Penalties for Environmental Violations” are hereby amended to read as

13-22

follows:

13-23

     42-17.6-3. Notice of violation and assessment of penalty. -- (a) Whenever the director

13-24

seeks to assess an administrative penalty on any person, the director shall cause to be served upon

13-25

the person, either by service, in hand, or by certified mail, return receipt requested, a written

13-26

notice of its intent to assess an administrative penalty which shall include:

13-27

     (1) A concise statement of the alleged act or omission for which the administrative

13-28

penalty is sought to be assessed;

13-29

     (2) Each law, rule, regulation, order, permit, license, or approval which has not been

13-30

complied with as a result of the alleged act or omission;

13-31

     (3) The amount which the director seeks to assess as an administrative penalty for each

13-32

alleged act or omission;

13-33

     (4) A statement of the person's right to an adjudicatory hearing on the proposed

13-34

assessment;

14-1

     (5) The requirements the person must comply with to avoid being deemed to have waived

14-2

the right to an adjudicatory hearing; and

14-3

     (6) The manner of payment thereof if the person elects to pay the penalty and waive an

14-4

adjudicatory hearing.

14-5

      (b) After written notice of noncompliance or intent to assess an administrative penalty

14-6

has been given, each day thereafter during which the noncompliance occurs or continues shall

14-7

constitute a separate offense and shall be subject to a separate administrative penalty if reasonable

14-8

efforts have not been made to promptly come into compliance.

14-9

      (c) For purposes of timely and effective resolution and return to compliance, the director

14-10

may cite a person for alleged noncompliance through the issuance of an expedited citation, which

14-11

may include assessment of penalties up to two thousand five hundred dollars ($2,500). Each

14-12

expedited citation shall include a concise statement of the alleged act or omission that constitutes

14-13

noncompliance and each law, rule, regulation, order, permit, license or approval which has not

14-14

been complied with; and that person alleged to be in noncompliance shall have the right at any

14-15

time to opt out of the alleged expedited citation process. Failure to respond to an expedited

14-16

citation shall be deemed as exercising the right to opt out. An expedited citation shall not take

14-17

effect without the voluntary agreement of the person alleged to be in noncompliance. Expedited

14-18

citations issued under this section without notice and prior hearing shall be effective no longer

14-19

than sixty (60) days from the date of receipt by the person alleged to be in noncompliance. In the

14-20

event that the alleged noncompliance and penalty is unresolved and the expedited citation expires,

14-21

the director retains the right to issue a separate notice of violation and order and penalty, subject

14-22

to appeal pursuant to section 42-17.6-4. A person issued an expedited citation shall have the right

14-23

at any time during the sixty (60) day expedited citation process to request that the director issue a

14-24

separate notice of violation and order and penalty, subject to appeal pursuant to section 42-17.6-4.

14-25

     42-17.6-4. Right to adjudicatory hearing. -- (a) Whenever the director seeks to assess

14-26

an administrative penalty on any person other than through an expedited citation issued pursuant

14-27

to subsection 42-17.6-3 (c), the person shall have the right to an adjudicatory hearing under

14-28

chapter 35 of this title, the provisions of which shall apply except when they are inconsistent with

14-29

the provisions of this chapter.

14-30

     (b) A person shall be deemed to have waived his or her right to an adjudicatory hearing

14-31

unless, within ten (10) days of the date of the director's notice that he or she seeks to assess an

14-32

administrative penalty, the person files with the director or the clerk of the administrative

14-33

adjudication division a written statement denying the occurrence of any of the acts or omissions

14-34

alleged by the director in the notice, or asserting that the money amount of the proposed

15-1

administrative penalty is excessive. In any adjudicatory hearing authorized pursuant to chapter 35

15-2

of title 42, the director shall, by a preponderance of the evidence, prove the occurrence of each act

15-3

or omission alleged by the director.

15-4

     (c) If a person waives his or her right to an adjudicatory hearing, the proposed

15-5

administrative penalty shall be final immediately upon the waiver.

15-6

     SECTION 2. This act shall take effect upon passage.

=======

LC01498/SUB A

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

***

16-1

     This act would allow the director of environmental management to use an expedited

16-2

citation process for alleged noncompliance.

16-3

     This act would take effect upon passage.

=======

LC01498/SUB A

=======