2013 -- S 0495

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LC01500

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

     Introduced By: Senators Walaska, and Sosnowski

     Date Introduced: February 28, 2013

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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

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

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

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the following powers and duties:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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parks and recreation;

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

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

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

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

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public law relating to the division of harbors and rivers;

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

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

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

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5, 6, 7, 9, 11, 13, 18, and 19 of title 4, as amended, entitled "Animals and Animal Husbandry;"

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

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

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

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

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

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

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agriculture, fisheries, and recreation;

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

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

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203 of the Public Laws, 1960;

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

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

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limited;

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

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

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

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

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

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distribution systems;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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disposal systems;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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industrial waste disposal sites and waste oil disposal sites;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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be necessary to enforce those rules, regulations, and orders.

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

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

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

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

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regulations established by the director.

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

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

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following provisions:

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

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

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warrant is otherwise allowed or provided by law;

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

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

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

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following circumstances, in accordance with the applicable constitutional standards:

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       (I) For closely regulated industries;

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

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       (III) In emergency situations;

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

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safety or welfare;

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

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consents; or

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

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

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

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

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

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

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

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apply to applications for administrative search warrants.

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

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

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

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

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time, the court orders otherwise.

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

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

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

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

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

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

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

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

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documents were taken.

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

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

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

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location is being inspected.

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

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

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

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

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

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

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refusal.

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

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

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

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

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

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general to prosecute offenders as required by law.

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

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

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

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

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

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

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

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

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order.

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

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

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

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

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

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

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order may be made.

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

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

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

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days.

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

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

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

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

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

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hearing before the director within ten (10) days of the service of notice of violation, the director

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shall set a time and place for the hearing, and shall give the person requesting that hearing at least

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five (5) days written notice thereof. After the hearing, the director may make findings of fact and

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

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notice, that decision shall be deemed a compliance order and shall be served upon the person

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

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

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

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set in the order.

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

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

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

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superior court of the state for enforcement of the compliance order and for appropriate temporary

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

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

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

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

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

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or any other remedies provided by law.

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

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

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

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

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issue its writ of certiorari;

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

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

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subdivision (26); and

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

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chapter:

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

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

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

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

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

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

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

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

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supervision of the properties of such corporation.

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

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

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

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first occur.

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

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

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

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Island and to report back its findings on an annual basis to the general assembly on or before

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March 1 of every year;

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

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

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

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interest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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opportunities for Rhode Island residents and visitors.

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

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

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such funds.

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

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

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

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

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

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

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

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administrative adjudication division.

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

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

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

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

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

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

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sewage disposal system program and fresh waters wetlands program will be deposited as general

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revenues and the amounts appropriated shall be used for the purposes of administering and

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operating the programs. The director shall submit to the house fiscal advisor and the senate fiscal

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advisor by January 15 of each year a detailed report on the amount of funds obtained from fines

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and fees and the uses made of such funds.

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

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

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

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

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

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identified lands.

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

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

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

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

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

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filing of each document submitted by a land trust.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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rules and regulations including payment of reasonable dues.

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

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

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

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dissolution of the land trust.

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

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

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

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

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

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

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all private and public land trust land holdings in Rhode Island.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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fund for the benefit of the designated trust lands.

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

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

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

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

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underground storage tanks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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after correction.

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

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

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Tank Financial Responsibility Act, as amended.

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

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

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

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

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

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

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

13-8

management and research.

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

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

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

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

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

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

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

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

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

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

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aquatic invasive species in the freshwaters of the state.

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

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

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follows:

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

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

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

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

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

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penalty is sought to be assessed;

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

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

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

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alleged act or omission;  

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

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assessment;

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

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the right to an adjudicatory hearing; and

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

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adjudicatory hearing.

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

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

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

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efforts have not been made to promptly come into compliance.

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

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may cite a person for alleged non-compliance through the issuance of an expedited citation,

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

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

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constitutes non-compliance and each law, rule, regulation, order, permit, license or approval

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which has not been complied with. Expedited citations issued under this section without notice

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and prior hearing shall be effective no longer than sixty (60) days from the date of receipt by the

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person alleged to be in non-compliance. In the event that the alleged non-compliance and penalty

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is unresolved and the expedited citation expires, the director retains the right to issue a separate

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

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

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

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

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

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the provisions of this chapter.

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

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

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

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

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

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

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

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or omission alleged by the director.

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

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administrative penalty shall be final immediately upon the waiver.

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SECTION 3. This act shall take effect upon passage.

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LC01500

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

***

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

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citation process for alleged noncompliance.

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     This act would take effect upon passage.

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LC01500

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