2023 -- H 5107

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LC000144

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO HEALTH AND SAFETY -- HAZARDOUS WASTE MANAGEMENT

     Introduced By: Representatives Carson, and Morales

     Date Introduced: January 12, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-19.1-4, 23-19.1-18 and 23-19.1-18.1 of the General Laws in

Chapter 23-19.1 entitled "Hazardous Waste Management" are hereby amended to read as follows:

     23-19.1-4. Definitions.

     When used in this chapter:

     (1) “Department” means the department of environmental management;

     (2) “Director” means the director of the department of environmental management or the

director’s designee;

     (3) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking,

abandoning, or placing of any hazardous waste in, on, into or onto any land, other surface, or

building, or into any water, stormwater system, or sewer system;

     (4) "Fill" means any act by which earth, sand, or other material is placed or moved to a

new location above ground. The fill is also the difference in elevation between a point of existing

undisturbed ground and a designated point of higher elevation of the final grade.

     (4)(5)(i) “Hazardous waste” means any waste or combination of wastes of a solid, liquid,

contained gaseous, or semisolid form which because of its quantity, concentration, or physical,

chemical, or infectious characteristics may:

     (A) Cause or significantly contribute to an increase in mortality or an increase in serious

irreversible or incapacitating reversible illness; or

     (B) Pose a substantial present or potential hazard to human health or the environment.

     (ii) These wastes include, but are not limited to, those which are toxic, corrosive,

flammable, irritants, strong sensitizers, substances which are assimilated or concentrated in and are

detrimental to tissue, or which generate pressure through decomposition or chemical reaction. In

addition, these wastes include “industrial waste” as the term is used elsewhere, unless the context

shall clearly indicate otherwise.

     (iii) Hazardous waste does not include waste or a combination of wastes that are recycled

as legitimate recycled hazardous waste pursuant to title 40 of the Code of Federal Regulations

(CFR) section 260.43.

     (5)(6) “Hazardous waste generation” means the act or process of producing hazardous

waste;

     (6)(7) “Hazardous waste management” means the systematic control of the collection,

source separation, storage, transportation, processing, treatment, recovery, and disposal of

hazardous wastes;

     (7)(8) “Hazardous waste management facility” means a facility, excluding vehicles, for

collection, source separation, storage, processing, treatment, recovery, or disposal of hazardous

wastes, or a transfer station for hazardous waste, and may include a facility at which such activities

occur and where waste has been generated;

     (8)(9) “Landfill” means any disposal facility or part of a facility where hazardous waste is

placed in or on land;

     (9)(10) “Manifest” means the form used for identifying the quantity, composition, and the

origin, routing, and destination of hazardous waste during its transportation from the point of

generation to the point of disposal, treatment, or storage;

     (10)(11) “Person” means an individual, trust, firm, joint stock company, corporation

(including a government corporation), partnership, association, the federal government or any

agency or subdivision thereof, a state, municipality, commission, political subdivision of a state, or

any interstate body;

     (11)(12) “Storage” means the actual or intended containment of hazardous waste, either on

a temporary basis or for a period of years, in such a manner as not to constitute disposal of the

hazardous waste;

     (12)(13) “Transfer station” means an intermediate point in the transport of hazardous

wastes where the wastes are brought, stored, and transferred to vehicles for movement to other

intermediate points or to the point of ultimate storage or disposal;

     (13)(14) “Transport” means the movement of wastes from the point of generation to any

intermediate points, and finally to the point of ultimate storage or disposal;

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     (14)(15) “Treatment” means any method, technique, or process, including neutralization

or incineration, designed to change the physical, chemical, or biological character or composition

of any hazardous waste as to neutralize the waste or so as to render the waste less hazardous,

nonhazardous, safer to transport, amenable to storage, or reduced in volume, except any method or

technique that may be included as part of the manufacturing process at the point of generation.

     23-19.1-18. Criminal penalties — Payment of restoration costs.

     (a) Unless otherwise specified, any person who shall refuse to obey or who shall knowingly

violate, or reasonably should know that he or she is violating, the provisions of an order issued by

the director under the provisions of this chapter or any rules or regulations promulgated pursuant

to this chapter, or who shall cause the refusal or violation, shall be guilty of a felony.

     (b) Any person who shall tamper with, destroy, or in any other way detrimentally affect a

well which has been installed by any person pursuant to an order or rules and regulations issued by

the department of environmental management or any other state agency, for the purpose of testing

ground water contamination, shall be guilty of a felony.

     (c) Disposal of hazardous wastes at landfills which cannot be located, designed,

constructed, or operated to prevent the endangerment of all underground drinking water sources

beyond the facility boundary; or the endangerment of an aquifer which has been designated by any

federal or Rhode Island state agency as a sole source aquifer; or contamination by discharge by any

surface or subsurface means causing a violation of any rule or regulation or standard of any federal

or Rhode Island agency; or disposal of hazardous wastes at facilities other than hazardous waste

disposal facilities permitted by the department of environmental management is prohibited, and

any person who knowingly disposes, or who reasonably should know that he or she is disposing or

causing the disposal of, hazardous wastes in Rhode Island at other than hazardous waste disposal

facilities holding valid permits issued by the department of environmental management shall be

deemed guilty of a felony.

     (d) Operation of a hazardous waste disposal facility in Rhode Island without a valid permit

issued by the department of environmental management is prohibited, and any person who

knowingly operates a hazardous waste disposal facility in Rhode Island, or who reasonably should

know that he or she is operating or causing the operation of this facility without a valid permit shall

be guilty of a felony.

     (e) Transportation of hazardous wastes in Rhode Island without a valid permit issued by

the department of environmental management is prohibited, and any person who knowingly

transports hazardous wastes in Rhode Island without a valid permit issued by the department of

environmental management, or who reasonably should know that he or she is transporting or

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causing to be transported hazardous wastes without a permit, shall be guilty of a felony.

     (f) Treatment of hazardous wastes in Rhode Island without a valid permit issued by the

department of environmental management, or storage of hazardous wastes in Rhode Island without

a valid permit issued by the department of environmental management is prohibited and any person

who knowingly stores or treats hazardous wastes in Rhode Island without a valid permit issued by

the department of environmental management, or other authorization of the department of

environmental management, or who reasonably should know that he or she is storing or treating or

causing to be treated or stored without a permit, shall be guilty of a felony.

     (g) The transporting, causing to be transported, or accepting of hazardous waste for

treatment, storage, or disposal from a transporter without a manifest required by the department of

environmental management and completed in accordance with department of environmental

management regulations is prohibited. Any person who transports, causes to be transported, or

accepts hazardous waste for treatment, storage, or disposal and fails to prepare a manifest for the

hazardous waste or knowingly alters or falsifies the information on the manifest shall be deemed

guilty of a felony.

     (h) The use of hazardous waste as defined in § 23-19.1-4 as fill on any construction site

project is prohibited and any person who knowingly uses, or transports for use, hazardous waste as

fill on any construction site project in Rhode Island, or who reasonably should know that such fill

is hazardous waste, shall be guilty of a felony.

     (h)(i) Any person who knowingly makes a false statement, representation, or certification

in any application, record, report, plan, permit, or other document filed, maintained, and used for

the purposes of program compliance under this chapter shall be deemed guilty of a felony.

     (i)(j) Any person who violates any provision of this section shall be punished by

imprisonment for not more than five (5) years or by a fine of not more than twenty-five thousand

dollars ($25,000) or both. In the case of a continuing violation, each day’s continuance of the

violation shall be a separate and distinct offense.

     (j)(k) In addition to the provisions of this section, after a judgment of conviction and

hearing in accordance with § 23-19.1-18.1, the court may shall order the defendant to pay the cost

of restoring to its original state the area where hazardous wastes were unlawfully stored, treated, or

disposed.

     23-19.1-18.1. Determination of restoration costs — Judgment — Other relief not

precluded.

     (a) In any case where the court is of the opinion that the sentence should consist of or

include the amount of the cost of restoring to its original state the area where hazardous wastes

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were stored, treated, or disposed of, or where soil containing hazardous waste was used as fill, in

violation of the provisions of this chapter, the court shall order a hearing to determine the amount

of the cost of the restoration. For the purposes of this section, the “original state of the area” means

the reasonably ascertainable condition of the property immediately prior to the unlawful storage,

treatment, or disposal, or use of soil containing hazardous waste as fill, or, if impracticable to

determine the condition, then it shall be the reasonable environmentally sound condition of the

property. The order must be filed with the clerk of the court and must specify a date for the hearing

not less than ten (10) days after the filing of the order.

     (b) Upon receipt of the order, the clerk of the court must send a notice of the hearing to the

defendant, the defendant’s legal counsel, and the attorney general. The notice must specify the time

and place of the hearing and the fact that the purpose of the hearing is to determine the amount of

the cost of restoring to its original state the area where hazardous wastes were stored, treated, or

disposed unlawfully.

     (c) When the defendant appears for the hearing, the court must ask the defendant whether

he or she wishes to make any statement or offer any evidence with respect to the amount of the cost

of restoring to its original state the area where hazardous wastes were stored, treated, or disposed

unlawfully.

     (d) At any hearing held pursuant to this section, the burden of proof rests upon the state,

which shall be represented by the attorney general. A finding as to the amount of the cost of

restoring to its original state the area where hazardous wastes were stored, treated, or disposed

unlawfully must be based upon a preponderance of the evidence. The defendant shall be permitted

to rebut any evidence offered by the state.

     (e) In all cases, the court shall enter its findings and judgment upon the record at the

conclusion of the hearing.

     (f)(1) The judgment may require the defendant to pay an amount for the restoration of the

property or to perform duties of restoration or both. Where the cost of restoration cannot be wholly

determined by the evidence, the court may order the defendant to pay an amount that reasonably

approximates the total cost of restoration or may require the defendant to finance the restoration

without a determination as to amount.

     (2) When the court orders the defendant to pay an amount for the restoration of the

property, the amount shall be paid to the department of environmental management and shall be

used exclusively by the department of environmental management for the restoration of the

property.

     (3) Where the court orders the defendant to perform duties of restoration to the property,

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the court may authorize the department of environmental management to supervise and report to it

on the conduct of the duties.

     (4) In order to most likely assure the restoration of the property, where there are two or

more defendants, the court may apportion the costs or assign the performance of duties of

restoration, or both, between or among the defendants as the interests of justice may appear to the

court.

     (5) Defendants may be ordered by the court to reimburse the state for any administrative

costs incurred by the state or its agents in conjunction with restoration work.

     (g) The provisions of this section shall not preclude the state or attorney general or the

department of environmental management from seeking any other relief authorized by other statute

or common law.

     SECTION 2. Chapter 23-19.1 of the General Laws entitled "Hazardous Waste

Management" is hereby amended by adding thereto the following section:

     23-19.1-22.1. Use of hazardous waste in soil as fill prohibited.

     (a) Any person who shall violate the provisions of this chapter through the use of hazardous

waste as defined in § 23-19.1-4 as fill on any construction site project in the state, or who shall

have caused the use of hazardous waste as fill on any construction site project in the state shall be

liable for the cost of containment, cleanup, restoration, and removal of the fill, and for all damages,

losses, or injuries, including environmental, which result directly or indirectly from the use of the

soil containing hazardous waste as fill.

     (b) Proceedings brought pursuant to this section shall be instituted by filing a complaint in

the superior court.

     (c) The state, by and through the department of environmental management, is the trustee

of the air, water, fish, and wildlife of the state. An action brought pursuant to the provisions of this

chapter with respect to environmental damage may be brought by the attorney general or the

director of the department of environmental management in the name of the state as trustee for

those natural resources.

     (d) The court may award treble the amount of the costs, damages, losses, or injuries

whenever it finds that an individual has used soil containing hazardous waste as fill in violation of

this chapter or the rules and regulations promulgated pursuant to this chapter in a willful and

knowing manner.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- HAZARDOUS WASTE MANAGEMENT

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     This act would prohibit the use of hazardous waste as fill on any construction site project

and renders the use of such material as fill a felony.

     This act would take effect upon passage.

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