Chapter 400
2013 -- S 0495 SUBSTITUTE A
Enacted 07/15/13
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
It is enacted by the
General Assembly as follows:
SECTION 1. Section 42-17.1-2 of the General Laws in Chapter
42-17.1 entitled
“Department of
Environmental Management” is hereby amended to read as follows:
42-17.1-2.
Powers and duties. -- The director of
environmental management shall have
the following powers and duties:
(1) To supervise and
control the protection, development, planning, and utilization of the
natural resources of the state, such resources, including but
not limited to, water, plants, trees,
soil, clay, sand, gravel, rocks and other minerals, air,
mammals, birds, reptiles, amphibians, fish,
shellfish, and other forms of aquatic, insect, and animal life;
(2) To exercise all
functions, powers, and duties heretofore vested in the department of
agriculture and conservation, and in each of the divisions of the
department, such as the
promotion of agriculture and animal husbandry in their several
branches, including the inspection
and suppression of contagious diseases among animals, the
regulation of the marketing of farm
products, the inspection of orchards and nurseries, the
protection of trees and shrubs from
injurious insects and diseases, protection from forest fires,
the inspection of apiaries and the
suppression of contagious diseases among bees, prevention of the
sale of adulterated or
misbranded agricultural seeds, promotion and encouragement of
the work of farm bureaus in
cooperation with the
established for the purpose of developing an interest in
agriculture, together with such other
agencies and activities as the governor and the general
assembly may from time to time place
under the control of the department, and as heretofore
vested by such of the following chapters
and sections of the general laws as are presently
applicable to the department of environmental
management and which were previously applicable to the
department of natural resources and the
department of agriculture and conservation or to any of its
divisions: chapters 1 through 22,
inclusive, as amended, in title 2 entitled "Agriculture
and Forestry;" chapters 1 through 17,
inclusive, as amended, in title 4 entitled "Animals and Animal
Husbandry;" chapters 1 through
19, inclusive, as amended, in title 20 entitled
"Fish and Wildlife;" chapters 1 through 32,
inclusive, as amended, in title 21 entitled "Food and
Drugs;" chapter 7 of title 23 as amended,
entitled "Mosquito Abatement;" and by any other
general or public law relating to the department
of agriculture and conservation or to any of its
divisions or bureaus;
(3) To exercise all the
functions, powers, and duties heretofore vested in the division of
parks and recreation of the department of public works by
chapters 1, 2, and 5 in title 32 entitled
"Parks and Recreational Areas;" by chapter
22.5 of title 23, as amended, entitled "Drowning
Prevention and Lifesaving;" and by any other
general or public law relating to the division of
parks and recreation;
(4) To exercise all the
functions, powers, and duties heretofore vested in the division of
harbors and rivers of the department of public works, or in
the department itself by such as were
previously applicable to the division or the department, of
chapters 1 through 22 and sections
thereof, as amended, in title 46 entitled "Waters and
Navigation"; and by any other general or
public law relating to the division of harbors and rivers;
(5) To exercise all the
functions, powers and duties heretofore vested in the department of
health by chapters 25, 18.9, and 19.5 of title 23, as
amended, entitled "Health and Safety;" and by
chapters 12 and 16 of title 46, as amended, entitled
"Waters and Navigation"; by chapters 3, 4, 5,
6, 7, 9, 11, 13, 18, and 19 of title 4, as amended,
entitled "Animals and Animal Husbandry;" and
those functions, powers, and duties specifically vested in
the director of environmental
management by the provisions of § 21-2-22, as amended, entitled
"Inspection of Animals and
Milk;" together with other powers and duties of
the director of the department of health as are
incidental to or necessary for the performance of the functions
transferred by this section;
(6) To cooperate with
the
planning and promotional functions, particularly in regard to
those resources relating to
agriculture, fisheries, and recreation;
(7) To cooperate with, advise, and guide conservation commissions of cities and
towns
created under chapter 35 of title 45 entitled
"Conservation Commissions", as enacted by chapter
203 of the Public Laws, 1960;
(8) To assign or
reassign, with the approval of the governor, any functions, duties, or
powers established by this chapter to any agency within the
department, except as hereinafter
limited;
(9) To cooperate with
the water resources board and to provide to the board facilities,
administrative support, staff services, and such other services as
the board shall reasonably
require for its operation and, in cooperation with the board
and the statewide planning program to
formulate and maintain a long range guide plan and implementing
program for development of
major water sources transmissions systems needed to furnish
water to regional and local
distribution systems;
(10) To cooperate with
the solid waste management corporation and to provide to the
corporation such facilities, administrative support, staff
services and such other services within
the department as the corporation shall reasonably
require for its operation;
(11) To provide for the
maintenance of waterways and boating facilities, consistent with
chapter 6.1 of title 46, by: (i)
establishing minimum standards for upland beneficial use and
disposal of dredged material; (ii) promulgating and enforcing
rules for water quality, ground
water protection, and fish and wildlife protection pursuant
to § 42-17.1-24; (iii) planning for the
upland beneficial use and/or disposal of dredged material in
areas not under the jurisdiction of the
council pursuant to § 46-23-6(2); and (iv) cooperating with
the coastal resources management
council in the development and implementation of comprehensive
programs for dredging as
provided for in §§ 46-23-6(1)(ii)(H) and 46-23-18.3; and (v)
monitoring dredge material
management and disposal sites in accordance with the protocols
established pursuant to § 46-6.1-
5(3) and the comprehensive program provided for in §
46-23-6(1)(ii)(H); no powers or duties
granted herein shall be construed to abrogate the powers or
duties granted to the coastal resources
management council under chapter 23 of title 46, as amended;
(12) To establish
minimum standards, subject to the approval of the environmental
standards board, relating to the location, design, construction
and maintenance of all sewage
disposal systems;
(13) To enforce, by such
means as provided by law, the standards for the quality of air,
and water, and the design, construction and operation of
all sewage disposal systems; any order or
notice issued by the director relating to the location,
design, construction or maintenance of a
sewage disposal system shall be eligible for recordation
under chapter 13 of title 34. The director
shall forward the order or notice to the city or town
wherein the subject property is located and
the order or notice shall be recorded in the general
index by the appropriate municipal official in
the land evidence records in the city or town wherein the
subject property is located. Any
subsequent transferee of that property shall be responsible for
complying with the requirements of
the order or notice. Upon satisfactory completion of the
requirements of the order or notice, the
director shall provide written notice of the same, which
notice shall be similarly eligible for
recordation. The original written notice shall be forwarded to
the city or town wherein the subject
property is located and the notice of satisfactory completion
shall be recorded in the general index
by the appropriate municipal official in the land
evidence records in the city or town wherein the
subject property is located. A copy of the written notice
shall be forwarded to the owner of the
subject property within five (5) days of a request for it,
and, in any event, shall be forwarded to
the owner of the subject property within thirty (30) days
after correction;
(14) To establish minimum
standards for the establishment and maintenance of salutary
environmental conditions, including standards and methods for the
assessment and the
consideration of the cumulative effects on the environment of
regulatory actions and decisions,
which standards for consideration of cumulative effects
shall provide for: (i) evaluation of
potential cumulative effects that could adversely effect public
health and/or impair ecological
functioning; (ii) analysis of such other matters relative to cumulative
effects as the department
may deem appropriate in fulfilling its duties, functions
and powers; which standards and methods
shall only be applicable to ISDS systems in the town of
water supply on private and public wells, unless broader
use is approved by the general assembly.
The department shall report to the general assembly
not later than March 15, 2008 with regard to
the development and application of such standards and
methods in
(15) To establish and
enforce minimum standards for permissible types of septage,
industrial waste disposal sites and waste oil disposal sites;
(16) To establish
minimum standards subject to the approval of the environmental
standards board for permissible types of refuse disposal
facilities, the design, construction,
operation, and maintenance of disposal facilities; and the
location of various types of facilities;
(17) To exercise all
functions, powers, and duties necessary for the administration of
chapter 19.1 of title 23 entitled "Rhode Island
Hazardous Waste Management Act";
(18) To designate in
writing any person in any department of the state government or any
official of a district, county, city, town, or other
governmental unit, with that official's consent, to
enforce any rule, regulation, or order promulgated and
adopted by the director under any
provision of law; provided, however, that enforcement of powers
of the coastal resources
management council shall be assigned only to employees of the
department of environmental
management, except by mutual agreement or as otherwise provided
in chapter 23 of title 46;
(19) To issue and
enforce such rules, regulations, and orders as may be necessary to carry
out the duties assigned to the director and the
department by any provision of law; and to conduct
such investigations and hearings and to issue, suspend,
and revoke such licenses as may be
necessary to enforce those rules, regulations, and orders.
Notwithstanding the
provisions of § 42-35-9 to the contrary, no informal disposition of a
contested licensing matter shall occur where resolution
substantially deviates from the original
application unless all interested parties shall be notified of
said proposed resolution and provided
with opportunity to comment upon said resolution pursuant
to applicable law and any rules and
regulations established by the director.
(20) To enter, examine
or survey at any reasonable time such places as the director deems
necessary to carry out his or her responsibilities under any
provision of law subject to the
following provisions:
(i)
For criminal investigations, the director shall, pursuant to chapter 5 of title
12, seek a
search warrant from an official of a court authorized to
issue warrants, unless a search without a
warrant is otherwise allowed or provided by law;
(ii) All administrative
inspections shall be conducted pursuant to administrative
guidelines promulgated by the department in accordance with
chapter 35 of title 42.
(B) A warrant shall not
be required for administrative inspections if conducted under the
following circumstances, in accordance with the applicable
constitutional standards:
(I) For
closely regulated industries;
(II) In situations
involving open fields or conditions that are in plain view;
(III) In emergency
situations;
(IV) In situations
presenting an imminent threat to the environment or public health,
safety or welfare;
(V) If the owner,
operator, or agent in charge of the facility, property, site or location
consents; or
(VI) In other situations
in which a warrant is not constitutionally required.
(C) Whenever it shall be
constitutionally or otherwise required by law, or whenever the
director in his or her discretion deems it advisable, an
administrative search warrant, or its
functional equivalent, may be obtained by the director from a
neutral magistrate for the purpose
of conducting an administrative inspection. The warrant
shall be issued in accordance with the
applicable constitutional standards for the issuance of
administrative search warrants. The
administrative standard of probable cause, not the criminal standard
of probable cause, shall
apply to applications for administrative search warrants.
(I) The
need for, or reliance upon, an administrative warrant shall not be construed as
requiring the department to forfeit the element of surprise in
its inspection efforts.
(II) An administrative
warrant issued pursuant to this subsection must be executed and
returned within ten (10) days of its issuance date unless,
upon a showing of need for additional
time, the court orders otherwise.
(III) An administrative warrant
may authorize the review and copying of documents that
are relevant to the purpose of the inspection. If
documents must be seized for the purpose of
copying, and the warrant authorizes such seizure, the person
executing the warrant shall prepare
an inventory of the documents taken. The time, place and
manner regarding the making of the
inventory shall be set forth in the terms of the warrant
itself, as dictated by the court. A copy of
the inventory shall be delivered to the person from whose
possession or facility the documents
were taken. The seized documents shall be copied as soon
as feasible under circumstances
preserving their authenticity, then returned to the person from
whose possession or facility the
documents were taken.
(IV) An administrative
warrant may authorize the taking of samples of air, water or soil
or of materials generated, stored or treated at the
facility, property, site or location. Upon request,
the department shall make split samples available to the
person whose facility, property, site or
location is being inspected.
(V) Service of an
administrative warrant may be required only to the extent provided for
in the terms of the warrant itself, by the issuing
court.
(D) Penalties. Any
willful and unjustified refusal of right of entry and inspection to
department personnel pursuant to an administrative warrant shall
constitute a contempt of court
and shall subject the refusing party to sanctions, which
in the court's discretion may result in up to
six (6) months imprisonment and/or a monetary fine of up
to ten thousand dollars ($10,000) per
refusal.
(21) To give notice of
an alleged violation of law to the person responsible therefor
whenever the director determines that there are reasonable
grounds to believe that there is a
violation of any provision of law within his or her
jurisdiction or of any rule or regulation adopted
pursuant to authority granted to him or her, unless other
notice and hearing procedure is
specifically provided by that law. Nothing in this chapter shall
limit the authority of the attorney
general to prosecute offenders as required by law.
(i)
The notice shall provide for a time within which the alleged violation shall be
remedied, and shall inform the person to whom it is directed
that a written request for a hearing
on the alleged violation may be filed with the director
within ten (10) days after service of the
notice. The notice will be deemed properly served upon a
person if a copy thereof is served him
or her personally, or sent by registered or certified
mail to his or her last known address, or if he
or she is served with notice by any other method of
service now or hereafter authorized in a civil
action under the laws of this state. If no written request
for a hearing is made to the director
within ten (10) days of the service of notice, the notice
shall automatically become a compliance
order.
(ii) (A) Whenever the director determines that there exists a
violation of any law, rule, or
regulation within his or her jurisdiction which requires
immediate action to protect the
environment, he or she may, without prior notice of violation or
hearing, issue an immediate
compliance order stating the existence of the violation and the
action he or she deems necessary.
The compliance order shall become effective
immediately upon service or within such time as is
specified by the director in such order. No request for a
hearing on an immediate compliance
order may be made.
(B) Any immediate compliance
order issued under this section without notice and prior
hearing shall be effective for no longer than forty-five (45)
days; provided, however, that for
good cause shown the order may be extended one additional
period not exceeding forty-five (45)
days.
(iii) The director
may, at his or her discretion and for the purposes of timely and effective
resolution and return to compliance, cite a person for alleged
noncompliance through the issuance
of an expedited citation in accordance with subsection
42-17.6-3(c).
(iii) (iv) If a person upon whom a notice of violation has been
served under the provisions
of this section or if a person aggrieved by any such
notice of violation requests a hearing before
the director within ten (10) days of the service of
notice of violation, the director shall set a time
and place for the hearing, and shall give the person
requesting that hearing at least five (5) days
written notice thereof. After the hearing, the director may
make findings of fact and shall sustain,
modify, or withdraw the notice of violation. If the director
sustains or modifies the notice, that
decision shall be deemed a compliance order and shall be
served upon the person responsible in
any manner provided for the service of the notice in this
section.
(iv) (v) The compliance order shall state a time within which
the violation shall be
remedied, and the original time specified in the notice of
violation shall be extended to the time
set in the order.
(v) (vi) Whenever a compliance order has become effective,
whether automatically where
no hearing has been requested, where an immediate
compliance order has been issued, or upon
decision following a hearing, the director may institute
injunction proceedings in the superior
court of the state for enforcement of the compliance order
and for appropriate temporary relief,
and in that proceeding the correctness of a compliance
order shall be presumed and the person
attacking the order shall bear the burden of proving error in
the compliance order, except that the
director shall bear the burden of proving in the proceeding
the correctness of an immediate
compliance order. The remedy provided for in this section shall
be cumulative and not exclusive
and shall be in addition to remedies relating to the
removal or abatement of nuisances or any
other remedies provided by law.
(vi) (vii) Any party aggrieved by a final judgment of the
superior court may, within thirty
(30) days from the date of
entry of such judgment, petition the supreme court for a writ of
certiorari to review any questions of law. The petition shall
set forth the errors claimed. Upon the
filing of the petition with the clerk of the supreme court,
the supreme court may, if it sees fit,
issue its writ of certiorari;
(22) To impose
administrative penalties in accordance with the provisions of chapter 17.6
of this title and to direct that such penalties be paid
into the account established by subdivision
(26); and
(23) The following
definitions shall apply in the interpretation of the provisions of this
chapter:
(i)
Director: The term "director" shall mean the director of
environmental management of
the state of
(ii) Person: The term
"person" shall include any individual, group of individuals, firm,
corporation, association, partnership or private or public
entity, including a district, county, city,
town, or other governmental unit or agent thereof, and in
the case of a corporation, any individual
having active and general supervision of the properties of
such corporation.
(iii) Service: (A) Service upon a corporation under this section
shall be deemed to
include service upon both the corporation and upon the person
having active and general
supervision of the properties of such corporation.
(B) For purposes of
calculating the time within which a claim for a hearing is made
pursuant to subdivision (21)(i) of
this section heretofore, service shall be deemed to be the date of
receipt of such notice or three (3) days from the date of
mailing of said notice, whichever shall
first occur.
(24) To conduct surveys
of the present private and public camping and other recreational
areas available and to determine the need for and location
of such other camping and recreational
areas as may be deemed necessary and in the public interest
of the state of
report back its findings on an annual basis to the general
assembly on or before March 1 of every
year;
(ii) Additionally, the
director of the department of environmental management shall take
such additional steps, including but not limited to,
matters related to funding as may be necessary
to establish such other additional recreational
facilities and areas as are deemed to be in the public
interest.
(25) To apply for and
accept grants and bequests of funds with the approval of the
director of administration from other states, interstate
agencies and independent authorities, and
private firms, individuals and foundations, for the purpose
of carrying out his or her lawful
responsibilities. The funds shall be deposited with the general
treasurer in a restricted receipt
account created in the Natural Resources Program for funds
made available for that program's
purposes or in a restricted receipt account created in the
Environmental Protection Program for
funds made available for that program's purposes. All
expenditures from the accounts shall be
subject to appropriation by the general assembly, and shall
be expended in accordance with the
provisions of the grant or bequest. In the event that a donation
or bequest is unspecified or in the
event that the trust account balance shows a surplus after
the project as provided for in the grant
or bequest has been completed, the director may utilize
said appropriated unspecified or
appropriated surplus funds for enhanced management of the
department's forest and outdoor
public recreation areas, or other projects or programs that
promote the accessibility of recreational
opportunities for
(ii) The director shall
submit to the house fiscal advisor and the senate fiscal advisor, by
October 1 of each year, a detailed report on the
amount of funds received and the uses made of
such funds.
(26) To establish fee
schedules by regulation with the approval of the governor for the
processing of applications and the performing of related
activities in connection with the
department's responsibilities pursuant to subdivision (12) of this
section, chapter 19.1 of title 23
as it relates to inspections performed by the department
to determine compliance with chapter
19.1 and rules and regulations
promulgated in accordance therewith, chapter 18.9 of title 23 as it
relates to inspections performed by the department to
determine compliance with chapter 18.9
and the rules and regulations promulgated in accordance
therewith, chapters 19.5 and 23 of title
23; chapter 12 of title 46 insofar as it relates to
water quality certifications and related reviews
performed pursuant to provisions of the federal Clean Water
Act, the regulation and
administration of underground storage tanks and all other programs
administered under chapter
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
as they relate to any reviews and related activities
performed under the provisions of the
Groundwater Protection Act, chapter 23-24.9 as it
relates to the regulation and administration of
mercury-added products, and chapter 17.7 of this title insofar as
it relates to administrative
appeals of all enforcement, permitting and licensing matters
to the administrative adjudication
division for environmental matters. Two (2) fee ranges shall
be required: for "Appeal of
enforcement actions", a range of fifty dollars ($50) to one
hundred dollars ($100), and for
"Appeal of application decisions", a range
of five hundred dollars ($500) to ten thousand dollars
($10,000). The monies from the administrative adjudication fees
will be deposited as general
revenues and the amounts appropriated shall be used for the
costs associated with operating the
administrative adjudication division.
There is hereby
established an account within the general fund to be called the water and
air protection program. The account shall consist of sums
appropriated for water and air pollution
control and waste monitoring programs and the state
controller is hereby authorized and directed
to draw his or her orders upon the general treasurer for
the payment of such sums or such portions
thereof as may be required from time to time upon receipt by
him or her of properly authenticated
vouchers. All amounts collected under the authority of this
subdivision for the sewage disposal
system program and fresh waters wetlands program will be
deposited as general revenues and the
amounts appropriated shall be used for the purposes of
administering and operating the programs.
The director shall submit to the house fiscal advisor
and the senate fiscal advisor by January 15 of
each year a detailed report on the amount of funds
obtained from fines and fees and the uses made
of such funds.
(27) To establish and
maintain a list or inventory of areas within the state worthy of
special designation as "scenic" to include, but not
be limited to, certain state roads or highways,
scenic vistas and scenic areas, and to make the list
available to the public.
(28) To establish and
maintain an inventory of all interests in land held by public and
private land trust and to exercise all powers vested herein
to insure the preservation of all
identified lands.
(i)
The director may promulgate and enforce rules and regulations to provide for
the
orderly and consistent protection, management, continuity of
ownership and purpose, and
centralized records-keeping for lands, water, and open spaces
owned in fee or controlled in full or
in part through other interests, rights, or devices such
as conservation easements or restrictions,
by private and public land trusts in
filing of each document submitted by a land trust.
(ii) The term
"public land trust" means any public instrumentality created by a
Rhode
Island municipality for the purposes stated herein and
financed by means of public funds
collected and appropriated by the municipality. The term
"private land trust" means any group of
five (5) or more private citizens of
Island as a nonbusiness
corporation for the purposes stated herein, or a national organization such
as the nature conservancy. The main purpose of either a
public or a private land trust shall be the
protection, acquisition, or control of land, water, wildlife,
wildlife habitat, plants, and/or other
natural features, areas, or open space for the purpose of
managing or maintaining, or causing to
be managed or maintained by others, the land, water, and
other natural amenities in any
undeveloped and relatively natural state in perpetuity. A private
land trust must be granted
exemption from federal income tax under Internal Revenue Code
501c(3) [26 U.S.C. § 501(c)(3)]
within two (2) years of its incorporation in
land trust in
of acquiring or accepting property or rights in property
from a single individual, family,
corporation, business, partnership, or other entity. Membership
in any private land trust must be
open to any individual subscribing to the purposes of the
land trust and agreeing to abide by its
rules and regulations including payment of reasonable dues.
(iii)
provide for the transfer to an organization created for the same
or similar purposes the assets,
lands and land rights and interests held by the land trust
in the event of termination or dissolution
of the land trust.
(B) All land trusts,
public and private, will record in the public records of the appropriate
towns and cities in Rhode Island all deeds, conservation
easements or restrictions or other
interests and rights acquired in land and will also file copies
of all such documents and current
copies of their articles of association, their bylaws, and annual
reports with the secretary of state,
and with the director of the
is hereby directed to establish and maintain permanently
a system for keeping records of all
private and public land trust land holdings in
(29) The director will
contact in writing, not less often than once every two (2) years,
each public or private land trust to ascertain: that all
lands held by the land trust are recorded with
the director; the current status and condition of each
land holding; that any funds or other assets
of the land trust held as endowment for specific lands
have been properly audited at least once
within the two (2) year period; the name of the successor
organization named in the public or
private land trust's bylaws or articles of association; and
any other information the director deems
essential to the proper and continuous protection and
management of land and interests or rights
in land held by the land trust. In the event that the
director determines that a public or private land
trust holding land or interest in land appears to have
become inactive, he or she shall initiate
proceedings to effect the termination of the land trust and the
transfer of its lands, assets, land
rights, and land interests to the successor organization
named in the defaulting trust's bylaws or
articles of association or to another organization created for
the same or similar purposes. Should
such a transfer not be possible, then the land trust,
assets, and interest and rights in land will be
held in trust by the state of
the time of original acquisition by the trust. Any trust
assets or interests other than land or rights
in land accruing to the state under such circumstances
will be held and managed as a separate
fund for the benefit of the designated trust lands.
(30) Consistent with
federal standards, issue and enforce such rules, regulations and
orders as may be necessary to establish requirements for
maintaining evidence of financial
responsibility for taking corrective action and compensating third
parties for bodily injury and
property damage caused by sudden and non-sudden accidental
releases arising from operating
underground storage tanks.
(31) To enforce, by such
means as provided by law, the standards for the quality of air,
and water, and the location, design, construction and
operation of all underground storage
facilities used for storing petroleum products or hazardous
materials; any order or notice issued
by the director relating to the location, design
construction, operation or maintenance of an
underground storage facility used for storing petroleum products
or hazardous materials shall be
eligible for recordation under chapter 13 of title 34. The
director shall forward the order or notice
to the city or town wherein the subject facility is
located, and the order or notice shall be recorded
in the general index by the appropriate municipal
officer in the land evidence records in the city
or town wherein the subject facility is located. Any
subsequent transferee of that facility shall be
responsible for complying with the requirements of the order or
notice. Upon satisfactory
completion of the requirements of the order or notice, the
director shall provide written notice of
the same, which notice shall be eligible for recordation.
The original written notice shall be
forwarded to the city or town wherein the subject facility is
located, and the notice of satisfactory
completion shall be recorded in the general index by the
appropriate municipal official in the land
evidence records in the city or town wherein the subject
facility is located. A copy of the written
notice shall be forwarded to the owner of the subject
facility within five (5) days of a request for
it, and, in any event, shall be forwarded to the owner
of the subject facility within thirty (30) days
after correction.
(32) To manage and
disburse any and all funds collected pursuant to § 46-12.9-4, in
accordance with § 46-12.9-5, and other provisions of the Rhode
Island Underground Storage
Tank Financial Responsibility Act,
as amended.
(33) To support, facilitate
and assist the Rhode Island Natural History Survey, as
appropriate and/or as necessary, in order to accomplish the
important public purposes of the
survey in gathering and maintaining data on
presentations and reports on natural history topics, ranking
species and natural communities,
monitoring rare species and communities, consulting on open
space acquisitions and management
plans, reviewing proposed federal and state actions and
regulations with regard to their potential
impact on natural communities, and seeking outside funding
for wildlife management, land
management and research.
(34) To promote the
effective stewardship of lakes and ponds including collaboration
with associations of lakefront property owners on planning
and management actions that will
prevent and mitigate water quality degradation, the loss of
native habitat due to infestation of
non-native species and nuisance conditions that result from
excessive growth of algal or non-
native plant species. By January 31, 2012, the director
shall prepare and submit a report to the
governor and general assembly that based upon available
information provides: (a) an assessment
of lake conditions including a description of the presence
and extent of aquatic invasive species in
lakes and ponds; (b) recommendations for improving the
control and management of aquatic
invasives species in lakes and ponds; and (c) an assessment of
the feasibility of instituting a boat
sticker program for the purpose of generating funds to
support implementation actions to control
aquatic invasive species in the freshwaters of the state.
SECTION
2. Sections 42-17.6-3 and 42-17.6-4 of the General Laws in Chapter
42-17.6
entitled “Administrative Penalties for Environmental
Violations” are hereby amended to read as
follows:
42-17.6-3.
Notice of violation and assessment of penalty. -- (a)
Whenever the director
seeks to assess an administrative penalty on any person,
the director shall cause to be served upon
the person, either by service, in hand, or by certified
mail, return receipt requested, a written
notice of its intent to assess an administrative penalty
which shall include:
(1) A concise statement of
the alleged act or omission for which the administrative
penalty is sought to be assessed;
(2) Each law, rule,
regulation, order, permit, license, or approval which has not been
complied with as a result of the alleged act or omission;
(3) The amount which the
director seeks to assess as an administrative penalty for each
alleged act or omission;
(4) A statement of the
person's right to an adjudicatory hearing on the proposed
assessment;
(5) The requirements the
person must comply with to avoid being deemed to have waived
the right to an adjudicatory hearing; and
(6) The manner of
payment thereof if the person elects to pay the penalty and waive an
adjudicatory hearing.
(b) After written
notice of noncompliance or intent to assess an administrative penalty
has been given, each day thereafter during which the
noncompliance occurs or continues shall
constitute a separate offense and shall be subject to a separate
administrative penalty if reasonable
efforts have not been made to promptly come into compliance.
(c) For purposes of
timely and effective resolution and return to compliance, the director
may cite a person for alleged noncompliance through the
issuance of an expedited citation, which
may include assessment of penalties up to two thousand
five hundred dollars ($2,500). Each
expedited citation shall include a concise statement of the
alleged act or omission that constitutes
noncompliance and each law, rule, regulation, order, permit,
license or approval which has not
been complied with; and that person alleged to be in
noncompliance shall have the right at any
time to opt out of the alleged expedited citation process.
Failure to respond to an expedited
citation shall be deemed as exercising the right to opt out.
An expedited citation shall not take
effect without the voluntary agreement of the person alleged
to be in noncompliance. Expedited
citations issued under this section without notice and prior
hearing shall be effective no longer
than sixty (60) days from the date of receipt by the
person alleged to be in noncompliance. In the
event that the alleged noncompliance and penalty is
unresolved and the expedited citation expires,
the director retains the right to issue a separate notice
of violation and order and penalty, subject
to appeal pursuant to section 42-17.6-4. A person issued
an expedited citation shall have the right
at any time during the sixty (60) day expedited citation
process to request that the director issue a
separate notice of violation and order and penalty, subject to
appeal pursuant to section 42-17.6-4.
42-17.6-4.
Right to adjudicatory hearing. -- (a) Whenever the director seeks to assess
an administrative penalty on any person other than
through an expedited citation issued pursuant
to subsection 42-17.6-3 (c), the person shall have the right to an adjudicatory
hearing under
chapter 35 of this title, the provisions of which shall apply
except when they are inconsistent with
the provisions of this chapter.
(b) A person shall be
deemed to have waived his or her right to an adjudicatory hearing
unless, within ten (10) days of the date of the director's
notice that he or she seeks to assess an
administrative penalty, the person files with the director or the
clerk of the administrative
adjudication division a written statement denying the occurrence
of any of the acts or omissions
alleged by the director in the notice, or asserting that the
money amount of the proposed
administrative penalty is excessive. In any adjudicatory hearing
authorized pursuant to chapter 35
of title 42, the director shall, by a preponderance of
the evidence, prove the occurrence of each act
or omission alleged by the director.
(c)
If a person waives his or her right to an adjudicatory hearing, the proposed
administrative penalty shall be final immediately upon the waiver.
SECTION
3. This act shall take effect upon passage.
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LC01500/SUB A
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