RSA 485-A:22 · Penalties and Other Relief; Failure to Provide Facility

485-A:22 Penalties and Other Relief; Failure to Provide Facility. –

Copy link

I.

Any person who willfully or negligently violates any provision of this subdivision or RSA 485-A:4-6; or any rule of the department adopted pursuant to this subdivision or RSA 485-A:4-6 or any condition or limitation in a permit issued under this subdivision or RSA 485-A:4-6; or who knowingly makes any material false statement, representation, or certification in any application, record, report, plan, or other document required to be filed or maintained pursuant to this subdivision or RSA 485-A:4-6 or pursuant to a rule adopted by the department under this subdivision or RSA 485-A:4-6 or who knowingly makes any such statement, representation, or certification in connection with any permit issued under this subdivision or RSA 485-A:4-6; or who knowingly renders inaccurate, falsifies, or tampers with any monitoring device or method required under this subdivision or RSA 485-A:4-6 or rule of the department adopted under this subdivision or RSA 485-A:4-6 or required in connection with any permit issued under this subdivision or RSA 485-A:4-6; or who knowingly fails, neglects, or refuses to obey any lawful order of the department, shall, notwithstanding the provisions of RSA title LXII, be punished by a fine of not more than $25,000 for each day of such violation or imprisoned for not more than 6 months or both.

Copy link

II.

Any person who shall violate any provisions of this subdivision or RSA 485-A:4-6, or any lawful regulation of the department issued pursuant to this subdivision or RSA 485-A:4-6, or any condition or limitation in a permit issued under this subdivision or RSA 485-A:4-6, or who shall fail, neglect, or refuse to obey any order lawfully issued pursuant to this subdivision or RSA 485-A:4-6, shall be subject to a civil penalty not to exceed $10,000 per day of such violation.

Copy link

III.

The department shall issue a written cease and desist order against any discharge or act in violation of this subdivision or RSA 485-A:4-6 or lawful regulation of the department made under them or any condition of any permit lawfully issued by the department, and any such discharge or act may be enjoined by the superior court upon application of the attorney general, whether the court is in term time or vacation. Municipalities shall comply with such orders pursuant to RSA 38:25. III-a. Municipalities may apply to a justice of the superior court for injunctive relief against existing or impending violations of RSA 485-A:17, or any rule or order issued under that section. The municipality shall give notice of any such action to the attorney general and the commissioner of environmental services, who may take such steps as they deem necessary to ensure uniform statewide enforcement, including but not limited to joining the action, assuming sole prosecution of the action, or, as of right dismissing the action without prejudice. Such notice shall be given at least 30 days prior to the commencement of any such action, unless more immediate action is necessary to prevent irreparable environmental damage or other serious public harm, in which case such notice shall be given as soon as practicable, but in no event later than the date of commencement of the action. This paragraph shall not be construed to affect, in any manner, existing authority of municipalities to act based upon the provisions of other statutes or local ordinances.

Copy link

IV.

The written cease and desist order issued pursuant to the provisions of paragraph III shall be recorded by the department in the registry of deeds for the county in which the property is situated and, upon recordation, said order shall run with the land; provided, however, that an appropriate description of the land involved including the accurate name of the owner of the land shall be incorporated in the cease and desist order. No fee shall be charged for recording such an administrative order; however, the fee for discharge of any such order shall be the same as for the discharge of a real estate property.

Copy link

V.

The commissioner of environmental services, after notice and hearing pursuant to RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person who violates any provision of this subdivision or, RSA 485-A:4-6, any rule adopted under this subdivision or RSA 485-A:4-6, or any permit issued under the authority of this subdivision or RSA 485-A:4-6. Rehearings and appeals from a decision of the commissioner under this paragraph shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties under this chapter. The proceeds of administrative fines levied pursuant to this paragraph shall be deposited by the department in the general fund. The commissioner shall adopt rules, under RSA 541-A, relative to:

Copy link

(a)

A schedule of administrative fines which may be imposed under this paragraph for violations of this chapter, rules adopted under this chapter, and permits issued under this chapter, as provided above.

Copy link

(b)

Procedures for notice and hearing prior to the imposition of an administrative fine. V-a. Upon receipt of information by the department that a municipality has not complied with RSA 485-A:5-b relative to septage disposal, the department shall issue an order directing said municipality to provide or assure access to an approved septage disposal facility not later than 180 calendar days following issuance of the order. Any municipality to whom such an order is directed may appeal in accordance with RSA 21-O:14. V-b. If any municipality fails to comply with an order under paragraph V-a, it shall be subject to an administrative fine pursuant to paragraph V. Each day of continuous violation shall constitute a separate offense. The department shall take the following steps:

Copy link

(a)

The department shall conduct an investigation of opportunities for joint action with other municipalities, the availability of private facilities, and possible facility sites within the municipality.

Copy link

(b)

The department shall report findings to the precinct and municipality, and seek local agreement to an acceptable solution to the septage problem.

Copy link

(c)

If no agreement is reached within 60 calendar days after the findings are delivered, the department shall schedule and hold a public hearing in the municipality. The hearing shall be held to solicit alternative septage disposal solutions for the municipality. Notice of the hearing shall be posted in 2 or more public places in the municipality for at least 14 calendar days before it is held, and shall be published in a newspaper of local circulation, at least twice, not less than 10 days prior to the hearing date.

Copy link

(d)

If no agreement is reached within 45 calendar days after the hearing, the department shall either order the municipality to participate in an existing or planned approved facility, or shall recommend that land within the municipality be taken by eminent domain for the establishment of an approved facility.

Copy link

(e)

Before land is taken by eminent domain, the department shall hold a public hearing in the municipality. Such hearing shall be noticed pursuant to the provisions of subparagraph (c).

Copy link

(f)

If the department determines that land shall be taken, the department shall institute eminent domain proceedings.

Copy link

(g)

The department shall be responsible for the facility's design and construction. V-c. If land is taken for construction of a facility:

Copy link

(a)

The property shall be held in the name of the state and shall not be taxed.

Copy link

(b)

Upon completion, the facility shall be operated by the municipality in accordance with the facility plan.

Copy link

(c)

At the time of the taking, the department shall certify to the commissioner of revenue administration the costs of establishing the facility. The certification shall be revised when the facility is complete to reflect actual costs, including land, buildings, equipment, administration, planning, consultants, and any other necessary costs.

Copy link

(d)

The commissioner of revenue administration shall assess the costs on the municipality over a 20-year period. Each annual assessment shall include the interest on any debt incurred by the state for this purpose. The assessment shall be made as provided in RSA 21-J:15 and RSA 81.

Copy link

(e)

When all costs and interest are paid, the property shall be deeded to the municipality, or in the case of an unincorporated town or unorganized place, to the county.

Copy link

VI.

The provisions of RSA 651:1 shall not apply to offenses under this chapter. Source. 1989, 339:1. 1990, 252:14, 17. 1991, 340:4. 1995, 217:7. 1996, 228:78, 106. 1997, 206:8. 1999, 232:3, 4, eff. Jan. 1, 2000. 2013, 247:6, eff. Mar. 24, 2014.

Copy link