Senate Bill #321 (2021)

AN ACT RELATING TO WATERS AND NAVIGATION -- STATE AFFAIRS AND GOVERNMENT -- HEALTH AND SAFETY

Updates and modernize the Department of Environmental Management’s ability to enforce environmental laws, and more specifically modifies practices regarding a Notice of Violation.

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  • 2021 – S 0321
  • 2021 – S 0321 SUBSTITUTE A
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  • LC000637
  • LC000637/SUB A
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  • S T A T E O F R H O D E I S L A N D
  • IN GENERAL ASSEMBLY
  • JANUARY SESSION, A.D. 2021
  • ____________
  • A N A C T
  • RELATING TO WATERS AND NAVIGATION – STATE AFFAIRS AND GOVERNMENT –
  • HEALTH AND SAFETY
  • Introduced By: Senators Euer, Cano, Murray, DiMario, and Valverde
  • Date Introduced: February 18, 2021
  • Referred To: Senate Judiciary
  • It is enacted by the General Assembly as follows:
  • SECTION 1. Section 46-12-9 of the General Laws in Chapter 46-12 entitled "Water Pollution" is hereby amended to read as follows:
  • SECTION 1. Sections46-12-9 and 46-12-17 of the General Lawsin Chapter 46-12 entitled "Water Pollution" are hereby amended to read as follows:
  • 46-12-9. Notices of violation and compliance orders.
  • (a) The director shall follow the procedures provided in § 42-17.1-10(g) § 42-17.1-2(21) in issuing any notice of violation or compliance order authorized pursuant to this chapter or any rules, regulations, or permits promulgated thereunder.
  • (b) Where an order of the director does not specify the system or means to be adopted, the person against whom an order is entered shall, before proceeding to install a system or means, submit tothedirectoraplanorstatement describingthesystemor meanswhichthepersonproposes to adopt.
  • (c) Any order or notice issued by the director shall be eligible for recordation under chapter 13 of title 34. The director shall forward the original order or notice to the city or town wherein the subject property is located and the order or notice shall be recorded 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 to the owner of the subject property, which notice shall be similarly eligible for recordation.
  • 46-12-17. Proceedings for enforcement.
  • The superior court for Providence County shall have concurrent jurisdiction to enforce the provisions of this chapter and any rule, regulation, permit, or order issued pursuant thereto. Proceedings for enforcement may be instituted and prosecuted in the name of the director, by either the director or by the attorney general, and in any proceedings in which the director or the attorney general seeks injunctive relief is sought, it shall not be necessary for the director to show that without the relief, the injury which will result will be irreparable or that the remedy at law is inadequate. Proceedings provided in this section shall be in addition to and may be utilized in lieu of other administrative or judicial proceedings authorized by this chapter.
  • SECTION 2. 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; the prevention of the sale of adulterated or misbranded agricultural seeds; promotion and encouragement of the work of farm bureaus, in cooperation with the University of Rhode Island, farmers' institutes, andthe various organizations 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 that 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 1through 19, inclusive, as amended, in title 20entitled "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 byanyother 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,asamended,intitle46entitled"WatersandNavigation";andbyanyothergeneral orpublic 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 Rhode Island commerce corporation in its 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 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 transmission 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 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)and46-23-18.3; and(v)Monitoringdredge material management and disposal sites in accordance with the protocols established pursuant to § 46-6.1-5(a)(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;
  • (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)and46-23-18.3; and(v)Monitoringdredge material management anddisposal sites in accordance with the protocols established pursuant to § 46-6.1-5(a)(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, whichstandardsforconsiderationofcumulativeeffectsshall providefor:(i)Evaluationofpotential cumulative effects that could adversely affect public health and/or impair ecological functioning; (ii) Analysis of other matters relativetocumulative effectsas the department maydeemappropriate in fulfilling its duties, functions, and powers; which standards and methods shall only be applicable to ISDS systems in the town of Jamestown in areas that are dependent for 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 the standards and methods in Jamestown;
  • (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 the 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 investigations and hearings and to issue, suspend, and revoke licenses as may be necessary to enforce those rules, regulations, and orders. Any license suspended under the rules, regulations, and/or orders shall be terminated and revoked if the conditions that led to the suspension are not corrected to the satisfaction of the director within two (2) years; provided that written notice is given by certified mail, return receipt requested, no less than sixty (60) days prior to the date of termination.
  • 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 the proposed resolution and provided with opportunity to comment upon the resolution pursuant to applicable law and any rules and regulations established by the director;
  • (20) To enter, examine, or survey, at any reasonable time, 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)(A) 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 presentingan imminent threat to theenvironment or publichealth, 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 the 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 theirauthenticity,thenreturnedtothepersonfromwhosepossessionorfacilitythedocumentswere 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 constitutea contempt of court and shall subject the refusing party to sanctions, which in the court's discretion may result in up to six (6)monthsimprisonment and/oramonetaryfineofuptotenthousanddollars($10,000)perrefusal.
  • (D) Penalties. Any willful and unjustified refusal of right of entry and inspection to department personnel pursuant to anadministrative warrant shall constitutea contempt of court and shall subject the refusing party to sanctions, which in the court's discretion may result in up to six (6)monthsimprisonment and/oramonetaryfineofuptotenthousanddollars($10,000)perrefusal.
  • (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 toauthoritygranted tohimor her, unless othernoticeandhearingprocedure 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) twenty (20) 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) twenty (20) 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 that 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 § 42-17.6-3(c);
  • (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) twenty (20) 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;
  • (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;
  • (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;
  • (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 thistitle and todirect that such penaltiesbe paidinto the account establishedbysubdivision (26);
  • (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 Rhode Island or his or her duly authorized agent;
  • (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 the 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 the corporation;
  • (B) For purposes of calculating the time within which a claim for a hearing is made pursuant to subdivision (21)(i), service shall be deemed to be the date of receipt of such notice or three (3) days from the date of mailing of the notice, whichever shall first occur.
  • (24)(i) To conduct surveys of the present private and public campingand other recreational areas available and to determine the need for and location of other camping and recreational areas as may be deemed necessary and in the public interest of the state of Rhode Island and to 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 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)(i) 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 the 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 Rhode Island residents and visitors;
  • (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 subsection (12); 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 promulgatedinaccordancetherewith; chapter 18.9 oftitle 23,as it relatestoinspections 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, 33 U.S.C. § 1251 et seq.; 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 24.9 of title 23 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 ordersupon the general treasurerfor the payment ofthesums, orportions 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 freshwaters 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 the 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 privatelandtrust and toexercise all powers vested herein to ensurethe preservationof all identified lands;
  • (i)Thedirectormaypromulgateandenforcerulesandregulationstoprovidefortheorderly 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 Rhode Island. The director may charge a reasonable fee for filing of each document submitted by a land trust;
  • (i)Thedirectormaypromulgateandenforcerulesandregulationstoprovidefor theorderly 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 Rhode Island. The director may charge a reasonable fee for filing of each document submitted by a land trust;
  • (ii)Theterm"publiclandtrust"meansanypublicinstrumentalitycreatedbyaRhodeIsland 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 Rhode Island who shall incorporate under the laws of Rhode Island as a nonbusiness corporationfor thepurposes stated herein,or anational organizationsuch 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 byothers,theland, water,and othernaturalamenitiesinanyundeveloped andrelatively natural state in perpetuity. A private land trust must be granted exemption from federal income tax under Internal Revenue Code 501(c)(3) [26 U.S.C. § 501(c)(3)] within two (2) years of its incorporation in Rhode Island or it may not continue to function as a land trust in Rhode Island. A private land trust may not be incorporated for the exclusive purpose 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)(A) Private land trusts will, in their articles of association or their bylaws, as appropriate, provide for the transfer to an organization, created for the same or similar purposes, of 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 townsandcitiesinRhodeIsland,all deeds,conservationeasements,orrestrictionsorotherinterests 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 their annual reports with the secretary of state and with the director of the Rhode Island department of environmental management. The director is hereby directed to establish and maintain permanently a system for keeping records of all private and public land trust land holdings in Rhode Island.
  • (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-year (2) 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 Rhode Island and managed by the director for the purposes stated at 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 withfederal standards,issueand enforce suchrules,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 forwardedtothe owner of the subject facilitywithinthirty(30) daysafter 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 gatheringand maintainingdata on Rhode Island natural history; makingpublic 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, ponds, rivers, and streams including, butnotlimitedto,collaborationwithwatershedorganizationsandassociationsoflakefrontproperty owners on planning and management actions that will prevent and mitigate water quality degradation, reduce the loss of native habitat due to infestation of non-native species, abate nuisance conditions that result from excessive growth of algal or non-native plant species as well as promote healthy freshwater riverine ecosystems;
  • (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 gatheringand maintainingdata on Rhode Island natural history; makingpublic 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, ponds, rivers, and streams including, butnotlimitedto,collaborationwithwatershedorganizationsandassociationsoflakefrontproperty owners on planning and management actions that will prevent and mitigate water quality degradation, reduce the loss of native habitat due to infestation of non-native species, abate nuisance conditions that result from excessive growth of algal or non-native plant species as well as promote healthy freshwater riverine ecosystems;
  • (35) In implementing the programs established pursuant to this chapter, to identify critical areas for improving service to customers doing business with the department, and to develop and implement strategies to improve performance and effectiveness in those areas. Key aspects of a customer-service program shall include, but not necessarily be limited to, the following components:
  • (a) Maintenance of an organizational unit within the department with the express purpose of providing technical assistance to customers and helping customers comply with environmental regulations and requirements;
  • (b) Maintenance of an employee-training program to promote customer service across the department;
  • (c) Implementation of a continuous business process evaluation and improvement effort, including process reviews to encourage development of quality proposals; ensure timely and predictable reviews; and result in effective decisions and consistent follow up and implementation throughout the department; and publish an annual report on such efforts;
  • (d) Creation of a centralized location for the acceptance of permit applications and other submissions to the department;
  • (e) Maintenance of a process to promote, organize, and facilitate meetings prior to the submission of applications or other proposals in order to inform the applicant on options and opportunities to minimize environmental impact; improve the potential for sustainable environmental compliance; and support an effective and efficient review and decision-making process on permit applications related to the proposed project;
  • (f) Development of single permits under multiple authorities otherwise provided in state law to support comprehensive and coordinated reviews of proposed projects. The director may address and resolve conflicting or redundant process requirements in order to achieve an effective and efficient review process that meets environmental objectives; and
  • (g) Exploration of the use of performance-based regulations coupled with adequate inspection and oversight, as an alternative to requiring applications or submissions for approval prior to initiation of projects. The department shall work with the office of regulatory reform to evaluate the potential for adopting alternative compliance approaches and provide a report to the governor and the general assembly by May 1, 2015;
  • (36)Toformulateandpromulgateregulationsrequiringanydockorpierlongerthantwenty feet (20') and located on a freshwater lake or pond to be equipped with reflective materials, on all sides facing the water, of an appropriate width and luminosity such that it can be seen by operators of watercraft; and
  • (37) To temporarily waive any control or prohibition respecting the use of a fuel or fuel additive required or regulated by the department if the director finds that:
  • (i) Extreme or unusual fuel or fuel additive supply circumstances exist in the state or the New England region that prevent the distribution of an adequate supply of the fuel or fuel additive to consumers;
  • (36)Toformulateandpromulgateregulationsrequiringanydockorpierlongerthantwenty feet (20') and located on a freshwater lake or pond to be equipped with reflective materials, on all sides facing the water, of an appropriate width and luminosity such that it can be seen by operators of watercraft; and
  • (37) To temporarily waive any control or prohibition respecting the use of a fuel or fuel additive required or regulated by the department if the director finds that:
  • (i) Extreme or unusual fuel or fuel additive supply circumstances exist in the state or the New England region that prevent the distribution of an adequate supply of the fuel or fuel additive to consumers;
  • (ii) Extreme or unusual fuel or fuel additive supply circumstances are the result of a natural disaster, an act of God, a pipeline or refinery equipment failure, or another event that could not reasonably have been foreseen; and
  • (iii) It is in the public interest to grant the waiver.
  • Any temporary waiver shall be made in writing and shall be effective for twenty (20) calendar days; provided, that the director may renew the temporary waiver, in writing, if it is deemed necessary.
  • SECTION 3. Section 23-18.9-11 of the General Laws in Chapter 23-18.9 entitled "Refuse Disposal" is hereby amended to read as follows:
  • 23-18.9-11. Prosecution of violations – Relief in equity or by prerogative writ.
  • (a) All prosecutions for the criminal violation of any provision of this chapter, or any rule or regulation made by the director in conformance with this chapter, shall be by indictment or information. The director, without being required to enter into any recognizance or to give surety for cost, or the attorney general of his or her own motion, may institute the proceedings in the name of the state. It shall be the duty of the attorney general to conduct the criminal prosecution of all the proceedings brought by the director pursuant to this chapter.
  • (b) The director may obtain relief in equity or by prerogative writ whenever relief shall be necessary for the proper performance of his or her duties under this chapter. The superior court for Providence County shall have the concurrent jurisdiction in equity to enforce the provisions of this chapter and any rule, or regulation or order issued pursuant to made by the director under this chapter. Proceedings under this section shall follow the course of equity and shall be instituted and prosecuted in the name of the director by the attorney general, but only upon the request of the director for enforcement in superior court may be instituted and prosecuted in the name of the director, by either the director or by the attorney general, and in any proceeding in which the director orthe attorneygeneral seeks injunctive relief, it shall not be necessaryto show that without this relief, the injury that will result will be irreparable or that the remedy at law is inadequate. Proceedings provided for in this section shall be in addition to other administrative or judicial proceedings authorized by this chapter or pursuant to any other provision of the general laws or common law.
  • SECTION 4. Section 23-19.1-15 of the General Laws in Chapter 23-19.1 entitled "Hazardous Waste Management" is hereby amended to read as follows:
  • 23-19.1-15. Proceedings for enforcement.
  • The superior court for Providence county shall have concurrent jurisdiction to enforce the provisions of this chapter and any rule, regulation, or order issued pursuant to this chapter. Proceedings for enforcement may be instituted and prosecuted in the name of the director, by either the director or by the attorney general, and in any proceeding in which the director or the attorney general seeks injunctive relief is sought, it shall not be necessary for the director to show that, without this relief, the injury which that will result will be irreparable, or that the remedy at law is inadequate. Proceedings provided for in this section shall be in addition to other administrative or judicial proceedings authorized by this chapter or pursuant to any other provision of the general laws or common law.
  • SECTION 5. Section 46-12.5.1-12 of the General Laws in Chapter 46-12.5.1 entitled "Oil Pollution Control" is hereby amended to read as follows:
  • 46-12.5.1-12. Notices of violations and compliance orders.
  • (a) The director shall follow the procedures provided in § 42-17.1-2(21) in issuing any notice of violation or compliance order authorized pursuant to thischapter oranyrules,regulations, or permits promulgated thereunder.
  • (b) Where an order of the director does not otherwise specify, the person against whom an order is entered shall, within seventy-two (72) hours of the receipt of the order and before proceeding to install a system or means to contain, abate, control, and remove the discharged oil, submit to the director a plan or a statement describing the system or means that the person intends to implement.
  • (c) Any order or notice issued by the director shall be eligible for recordation under chapter 13 of title 34. The director shall forward the original order or notice to the city or town wherein the subject property is located and the order or notice shall be recorded 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 land evidence records in the city or town wherein the subject property is located.
  • SECTION 6. Section 42-17.6-4 of the General Laws in Chapter 42-17.6 entitled "Administrative Penalties for Environmental Violations" is hereby amended to read as follows:
  • 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 personshall 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) twenty (20) 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 a final agency order immediately upon the waiver. The director may institute injunctive proceedings in the superior court for Providence County for enforcement of the final administrative penalty as a final agency order.
  • SECTION 7. Section 23-19.14-7.1 of the General Laws in Chapter 23-19.14 entitled "Industrial Property Remediation and Reuse Act" is hereby amended to read as follows:
  • 23-19.14-7.1. Remedial agreements.
  • In addition to exemption from liability provided for in § 23-19.14-7, for sites on which a remedialdecisionletter hasbeenissued,thestate andapersonwhohasreceivedaremedial decision letter may enter into a remedial agreement that includes a covenant not to sue and contribution protection and which describes the agreed remedial actions and shall be assignable as therein provided. Whenever the state has entered into a remedial agreement under this section, the liability to the state under this chapter of each party to the agreement including any future liability to the state, arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue. The final covenant not to sue may, at the discretion of the state, be transferred to successors or assigns that are not otherwise foundto bea responsiblepartyunder § 23-19.14-6. Thecovenant not to sue mayprovide that future liability to the state of a person who is under the remedial agreement may be limited to the same proportion as that established in the original agreement. A remedial agreement shall be distinct fromaletterofcompliance,andtheabsenceofaremedial agreement shall not affectorcompromise exemption to liability provided for in § 23-19.14-7.
  • SECTION 8. This act shall take effect upon passage.
  • (b) A person shall be deemed to have waived his or her right to an adjudicatory hearing unless, within ten (10) twenty (20) 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 a final agency order immediately upon the waiver. The director may institute injunctive proceedings in the superior court for Providence County for enforcement of the final administrative penalty as a final agency order.
  • SECTION 7. Section 23-19.14-7.1 of the General Laws in Chapter 23-19.14 entitled "Industrial Property Remediation and Reuse Act" is hereby amended to read as follows:
  • 23-19.14-7.1. Remedial agreements.
  • In addition to exemption from liability provided for in § 23-19.14-7, for sites on which a remedialdecisionletter hasbeenissued,thestate andapersonwhohasreceivedaremedial decision letter may enter into a remedial agreement that includes a covenant not to sue and contribution protection and which describes the agreed remedial actions and shall be assignable as therein provided. Whenever the state has entered into a remedial agreement under this section, the liability to the state under this chapter of each party to the agreement including any future liability to the state, arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue. The final covenant not to sue may, at the discretion of the state, be transferred to successors or assigns that are not otherwise foundto bea responsiblepartyunder § 23-19.14-6. Thecovenant not to sue may provide that future liability to the state of a person who is under the remedial agreement may be limited to the same proportion as that established in the original agreement. A remedial agreement shall be distinct fromaletterofcompliance,andtheabsenceofaremedial agreement shall not affectorcompromise exemption to liability provided for in § 23-19.14-7.
  • SECTION 8. Section 23-23-6 of the General Laws in Chapter 23-23 entitled "Air Pollution" is hereby amended to read as follows:
  • 23-23-6. Investigation and hearing of complaint of pollution – Public disclosure.
  • (a) If the director shall have cause to believe that any person is violating any provision of this chapter or rule or regulation or any order made under this chapter, it shall be the duty of the director to cause the matter to be investigated. Except as provided in § 23-23-16, before making any finding that a violation has occurred, that person shall be granted a hearing. At all hearings, the director shall receive evidence and hear witnesses in behalf of the person believed to be causing air pollution. the director shall follow the procedures provided in § 42-17.1-2(21) in issuing any notice of violation or compliance order authorized pursuant to this chapter or any rules, regulations, or permits promulgated thereunder.
  • (b) The director shall maintain records concerning all investigations undertaken and findings made pursuant to this section. Those records shall be made available for public inspection and shall include the following information:
  • (1) The names and addresses of persons investigated;
  • (2) The date or dates of any hearing or hearings conducted with respect to those persons and the time and place of the hearings;
  • (3) Any findings made by the director after the conclusion of the hearings.
  • SECTION 9. This act shall take effect upon passage.
  • ========
  • LC000637
  • LC000637/SUB A
  • ========
  • EXPLANATION
  • BY THE LEGISLATIVE COUNCIL
  • OF
  • A N A C T RELATING TO WATERS AND NAVIGATION – STATE AFFAIRS AND GOVERNMENT –
  • HEALTH AND SAFETY
  • ***
  • This act would update and modernize the Department of Environmental Management's ability to enforce environmental laws, and more specifically modifies practices regarding a Notice of Violation.
  • This act would take effect upon passage. ======== LC000637 ========
  • This act would take effect upon passage. ======== LC000637/SUB A ========

Votes

NOTE: Electronic voting records are unofficial and may not be accurate. For an official vote tally, check the House or Senate Journal from the day of the vote.

Floor vote for Passage

June 04, 2019 at 4:59pm
Yeas: 37 / Nays: 0 / Not voting: 1 / Recused: 0
Legislator Vote
Sen. Algiere Y
Sen. Archambault Y
Sen. Bell Y
Sen. Cano Y
Sen. Ciccone Y
Sen. Conley Y
Sen. Coyne Y
Sen. Crowley Y
Sen. Cruz Y
Sen. DiPalma Y
Sen. Euer Y
Sen. Felag Y
Sen. Gallo Y
Sen. Goldin Y
Sen. Goodwin Y
Sen. Lawson Y
Sen. Lombardi Y
Sen. Lombardo Y
Sen. Lynch Prata Y
Sen. McCaffrey Y
Sen. McKenney Y
Sen. Metts Y
Sen. Miller Y
Sen. Morgan Y
Sen. Murray Y
Sen. Nesselbush Y
Sen. Paolino Y
Sen. Pearson Y
Sen. Picard NV
Sen. Quezada Y
Sen. Raptakis Y
Sen. Rogers Y
Sen. Ruggerio Y
Sen. Satchell Y
Sen. Seveney Y
Sen. Sheehan Y
Sen. Sosnowski Y
Sen. Valverde Y

Floor vote for PASSAGE IN CONCURRENCE

June 20, 2019 at 5:43pm
Yeas: 71 / Nays: 0 / Not voting: 4 / Recused: 0
Legislator Vote
Rep. Abney Y
Rep. Ackerman Y
Rep. Ajello Y
Rep. Almeida Y
Rep. Alzate Y
Rep. Amore Y
Rep. Azzinaro Y
Rep. Barros NV
Rep. Bennett Y
Rep. Blazejewski Y
Rep. Caldwell Y
Rep. Canario Y
Rep. Carson Y
Rep. Casey Y
Rep. Casimiro Y
Rep. Cassar Y
Rep. Chippendale Y
Rep. Cortvriend Y
Rep. Corvese Y
Rep. Costantino Y
Rep. Craven Y
Rep. Diaz Y
Rep. Donovan Y
Rep. Edwards Y
Rep. Fellela Y
Rep. Filippi Y
Rep. Fogarty Y
Rep. Handy Y
Rep. Hawkins Y
Rep. Hull Y
Rep. Jackson Y
Rep. Jacquard NV
Rep. Johnston Y
Rep. Kazarian Y
Rep. Kennedy Y
Rep. Kislak Y
Rep. Knight Y
Rep. Lima Y
Rep. Lombardi Y
Rep. Lyle Y
Rep. Maldonado Y
Rep. Marszalkowski Y
Rep. Mattiello Y
Rep. McEntee Y
Rep. McKiernan Y
Rep. McLaughlin Y
Rep. McNamara Y
Rep. Mendez Y
Rep. Messier Y
Rep. Millea Y
Rep. Morin Y
Rep. Nardone Y
Rep. Newberry Y
Rep. Noret Y
Rep. O'Brien Y
Rep. Phillips Y
Rep. Place Y
Rep. Price Y
Rep. Quattrocchi Y
Rep. Ranglin-Vassell Y
Rep. Roberts Y
Rep. Ruggiero Y
Rep. Serodio Y
Rep. Serpa Y
Rep. Shanley Y
Rep. Shekarchi Y
Rep. Slater Y
Rep. Solomon Y
Rep. Speakman Y
Rep. Tanzi NV
Rep. Tobon Y
Rep. Ucci NV
Rep. Vella-Wilkinson Y
Rep. Walsh Y
Rep. Williams Y