CHAPTER Ec-Air 100 DEFINITIONS, ORGANIZATION AND PUBLIC
INFORMATION
Statutory
Authority: RSA 21-O:14, IV; RSA
541-A:16, I(a); and RSA 541‑A:30-a
Revision Note:
Document
#13642, effective 5-23-23, readopted with amendments former Part Env-AC 201 and
Part Env-AC 202 in Chapter Env-AC 200 titled “Procedural Rules” of the Air
Resources Council and renumbered the rules as Chapter Ec-Air
100 on organizational rules titled “Definitions, Organization and Public
Information.” The renumbering of rules
with the subtitle “Env-AC” to “Ec-Air” was done
pursuant to a rules redesignation plan for the Council’s rules approved by the
Director of the Office of Legislative Services in 2021. There were no prior filings for the former
Chapter Env-AC 100.
The
prior filings for the former Part Env-AC 201 and Part Env-Ac 202 included the
following documents:
#6586, eff 9-23-97
#8267-A, eff 1-25-05
As organizational
rules Chapter Ec-Air 100 in Document #13642 will not
expire except pursuant to RSA 541-A:17, II.
PART Ec-Air
101 PURPOSE
Ec-Air 101.01 Purpose. The purpose of this chapter is to provide organizational
rules to implement the statutory responsibilities for all matters under the
jurisdiction of the air resources council created by RSA 21-O:11.
Source. (See Revision Note at chapter heading for Ec-Air 100) #13642, eff 5-23-23
PART Ec-Air
102 DEFINITIONS
Ec-Air 102.01 Definitions.
(a) “Appeal” means an appeal of a department
decision initiated by filing a notice of appeal pursuant to RSA 21-O:14 and Ec-Air 203.01.
(b) “Appeals clerk” means the individual
designated by the commissioner to perform for the council the clerical support
duties outlined in RSA 21-O:3, VIII(a).
(c) “Appellant” means the party who initiates an
appeal pursuant to RSA 21-O:14.
(d) “Appearance” means a written notification to
the council that a party or party’s representative intends to actively
participate in a hearing.
(e) “Commissioner” means the commissioner of the
department.
(f) “Council” means the air resources council
established by RSA 21-O:11.
(g) “Council secretary” means the individual designated
by the commissioner to perform for the council the clerical support duties
outlined in RSA 21-O:3, VIII (c).
(h) “Department” means the department of
environmental services.
(i) “Department decision” means “department
decision” as defined in RSA 21-O:14, I(c).
(j) “Department enforcement decision” means
“department enforcement decision” as defined in RSA 21-O:14, I(b).
(k) “Department permitting decision” means
“department permitting decision” as defined in RSA 21-O:14, I(a).
(l) “Director” means the director of the
division.
(m) “Division” means the division of air
resources of the department.
(n) “Filing” means any petition, appeal, notice,
comment, or other document submitted to the council under this chapter.
“Filing” does not include any document distributed to all parties at a
prehearing conference or hearing.
(o) “Hearing” means “adjudicative proceeding” as
defined in RSA 541-A:1, I.
(p) “Hearing officer” means the individual
appointed under RSA 21-M:3, VIII to serve as the hearing officer for an appeal
before the council.
(q) “Intervenor” means a person allowed by the
council to intervene in an appeal pursuant to RSA 541-A:32 and Ec-Air 203.08.
(r) “Rulemaking petition” means a petition to
adopt, amend, or repeal a council rule, filed pursuant to Ec-Air
201.01.
(s) “Service list” means
a list maintained by the appeals clerk containing the names, physical address,
and email address of all parties, representatives of parties, and intervenors
in a proceeding, as well as all other interested persons who request to be
included on the service list.
Source. (See Revision Note at chapter heading for Ec-Air 100) #13642, eff 5-23-23
PART Ec-Air
103 COUNCIL ORGANIZATION
Ec-Air 103.01 Office
Hours, Electronic Mail Address, and Location.
(a) The council’s office is located
at:
Department of Environmental Services
29 Hazen Drive
P.O. Box 95
Concord, NH 03302-0095
(b) The council’s
electronic email address is appeals@des.nh.gov.
(c) The council’s
regular business hours shall coincide with those of the department.
Source. (See Revision Note at chapter heading for Ec-Air 100) #13642, eff 5-23-23
Ec-Air 103.02 Council
Responsibilities. The
responsibilities of the council are as follows:
(a) As required by RSA 21-O:11, III, the council
shall consult with and advise the commissioner of the department of
environmental services, or his or her designee, on a continuing basis with
respect to the policy, programs, goals, and operations of the department as
they relate to RSA 21-O:10, with particular emphasis on long-range planning for
the department and on education of the public relative to the functions of the
department;
(b) As required by RSA 21-O:11, IV, the council
shall hear all administrative appeals from department decisions made and shall
decide all disputed issues of fact in such appeals, in accordance with RSA
21-O:14;
(c) As required by RSA 21-O:11, V, the council
shall consider all proposed rules of the commissioner relative to the
department and shall present any objections to proposed rules to the
commissioner in writing within 15 days;
(d) As required by RSA 21-O:14, IV, the council
shall adopt rules in accordance with the rulemaking provisions of RSA 541-A to
govern its proceedings; and
(e) The council shall perform any additional
functions assigned to it by amendment to RSA 21-O:11.
Source. (See Revision Note at chapter heading for Ec-Air 100) #13642, eff 5-23-23
PART Ec-Air
104 PUBLIC INFORMATION
Ec-Air 104.01 Request
for Access to Records.
(a) Any person requesting access to council
records under RSA 91-A shall direct a request as specified in (b) below.
(b) A request to access council records shall be
in writing and:
(1)
Identify as particularly as possible the information being sought;
(2)
Include a statement whereby the requestor agrees to pay a copying fee of
$0.25 per page, if applicable; and
(3) Be sent
to the council secretary at the address specified in Ec-Air
103.01(a).
Source. (See Revision Note at chapter heading for Ec-Air 100) #13642, eff 5-23-23
CHAPTER Ec-Air
200 PROCEDURAL RULES
Revision Note:
Document
#13642, effective 5-23-23, readopted with amendments former Part Env-AC 203
through Part Env-AC 207 in Chapter Env-AC 200 on procedural rules of the Air
Resources Council and renumbered them as rules Ec-Air
201 through Ec-Air 202.02 and rules Ec-Air 202.04 through Ec-Air 203
in Chapter Ec-Air 200. Document #13642 also adopted again the former
Part Env-AC 208 containing Env-AC 208.01 on explanation of rules, which had
expired 1-25-13, and renumbered the rule as Ec-Air
202.03 in Chapter Ec-Air 200. The renumbering of rules from Env-AC 200 to Ec-Air 200 was done pursuant to a rules redesignation plan
for the Council’s rules approved by the Director of the Office of Legislative
Services in 2021. Document #13642
replaces all prior filings for the former Chapter Env-AC 200.
The
prior filings for the former Part Env-AC 203 through Part Env-AC 207 included
the following documents:
#6586, eff 9-23-97
#8267-A, eff 1-25-05
The
prior filings for the former Part Env-AC 208 included the following documents:
#6586, eff 9-23-97
#8267-B, eff 1-25-05, EXPIRED: 1-25-13
As practice and
procedure rules Chapter Ec-Air 200 in Document #13642
will not expire except pursuant to RSA 541-A:17, II.
PART Ec-Air
201 GENERAL PROCEDURES
Statutory
Authority: RSA 21-O:11, IV; RSA 21-O:14,
IV; RSA 541-A:16, I(b)–(d); RSA 541-A:30-a
Ec-Air 201.01 Form
and Content of Filings.
(a) Any filing submitted to the council shall:
(1) Be
submitted electronically in PDF format to appeals@des.nh.gov;
(2)
Following electronic submission in (1) above, be filed within 5 business
days as one copy on durable paper, hand-delivered or sent
by first class mail, postage prepaid, in the United States mail to the “Air
Resources Council, Attention: Appeals Clerk” at the address listed in Ec-Air 103.01(a);
(3) Be
signed by the individual submitting the filing;
(4)
Specify the name, address, and daytime telephone number and, if
available, the fax number and e-mail address of the individual submitting the
filing;
(5) Specify
the name and address of any and all organizations,
entities, or other persons whom the individual submitting the filing
represents, if any; and
(6) Be
typewritten or clearly printed.
(b) In any proceeding before the council, no
person shall file on behalf of any other person any filing unless the filer
concurrently files or has, in the same proceeding, previously filed an
appearance in accordance with Ec-Air 201.06.
(c) The signature of an individual submitting a
filing shall constitute certification that:
(1) The
signer has read the filing;
(2) The
signer is authorized to file it;
(3) To
the best of the signer’s knowledge, information, and belief, there are good and
sufficient grounds to support it; and
(4) The
filing has not been filed for purposes of delay.
(d) Any filing submitted to the council in
compliance with paragraph (a)(1) above shall be deemed to have been filed with
and received by the council on the actual date of receipt by the department, as
evidenced by an electronic mail date and time stamp.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.02 Computation
of Time and Deadlines.
(a) All time periods referenced in this chapter
shall be calendar days.
(b) Computation of any period of time referred to
in these rules shall begin with the day after the action which sets the time
period in motion, and shall end at the close of
council business on the last day of the period so computed.
(c) If the last day of the period so computed
falls on a Saturday, Sunday, or state legal holiday, then the time period shall be extended to the close of council
business on the first business day following the Saturday, Sunday, or state
legal holiday.
(d) Any filing not delivered to the council
address before the close of council business hours on the last day of any time period computed under these rules shall be deemed
untimely filed and shall not be considered by the council.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.03
Service of Documents.
(a) All
petitions, motions, exhibits, memoranda, comments, correspondence, or other
documents filed by any party to a proceeding governed by these rules shall be
served by that party upon all other parties on the service list maintained in
accordance with Ec-Air 203.05.
(b) All
notices, orders, decisions, or other documents issued pursuant to these rules
shall be served by the presiding officer upon all parties on the service list
maintained in accordance with Ec-Air 203.05.
(c)
Service of all documents relating to a proceeding shall be made by
electronic mail, unless a party or person on the service list has indicated an
inability to receive service by electronic mail, in which case service shall be
made by first class mail, postage prepaid, in the United States mail.
(d) If
a party serving any document does not have the ability to serve such document
by electronic mail, service shall be made by first class mail, postage prepaid,
in the United States mail.
(e) Notwithstanding paragraphs (a) through (c),
when a party appears by representative, service shall be upon the
representative by electronic mail, unless the representative has indicated an
inability to receive service by electronic mail, in which case service shall be
made by first class mail, postage prepaid, in the United States mail at the
address stated in the appearance filed by the representative.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.04 Waiver
of Rules. The presiding officer shall,
upon his or her own initiative or upon request by any party, waive the
application of any rule in this chapter upon reasonable notice to all affected
persons if he or she determines that such waiver:
(a) Would not violate any applicable statutory or
constitutional requirement;
(b) Would not unduly prejudice any party; and
(c) Would be more likely to promote the fair,
accurate, and efficient resolution of an issue pending before the council than
would adherence to the rule.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.05 Issuance
of Documents. All orders, decisions,
notices, or other written correspondence or documents issued by or at the
direction of the council or presiding officer shall be rebuttably presumed to
have been issued on the date noted on the document.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.06 Communications
with the Council.
(a) No person shall directly or indirectly communicate
with the presiding officer, the council, or any council member about any matter
that is or will likely be before the council except:
(1)
Through a filing submitted in accordance with Ec-Air
201.01; or
(2) At a
proceeding duly convened by the council.
(b) Any council member who receives any
communication in violation of paragraph (a) above shall, at the next council
meeting, inform the council on the record of the communication and submit a
copy of the same or, if the communication was made orally, relate the substance
of the communication to the council on the record.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 201.07 Appearances,
Withdrawals, and Removal.
(a) A notice of appearance shall include:
(1) The
name of the representative filing the appearance and of any
and all parties represented by the individual submitting the appearance;
(2) An
identification of the matter in which the representative represents the
parties;
(3) The
representative’s daytime address and telephone number and, if available, fax
number, and email address;
(4) If
the representative filing the appearance is an attorney licensed to practice in
the state of New Hampshire, the representative’s New Hampshire bar number; and
(5) If
the representative filing the appearance is not an attorney licensed to
practice in the state of New Hampshire, a signed statement by the represented
party certifying that the representative is authorized to act on the
represented party’s behalf in the matter.
(b) An appearance shall remain valid until:
(1) The
representative withdraws the appearance;
(2) The
council issues a final order on the matter in which the representative has
appeared and all deadlines for appeal or rehearing thereto have expired;
(3) A
new appearance naming a new representative for the party is filed; or
(4) The
representative is removed from representation.
(c) A notice of withdrawal shall include:
(1) A
statement that the representative no longer represents the party; and
(2) The
date that the representation ended.
(d) The presiding officer may remove a
representative from representing any party upon determining that the
representative has engaged in misconduct, subject to the following:
(1) For
the purposes of removal, misconduct shall include behavior that is disruptive
to the orderly conduct of the appeal and recurring failure to comply with the
provisions of Ec-Air 200; and
(2) Before removing a representative, the
presiding officer shall give notice to all parties to the matter and provide a reasonable
opportunity for any party to the matter to address the presiding officer
regarding why the removal should or should not be imposed.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
201.08 Presiding Officer. In all council proceedings in which a hearing
officer has not been designated presiding officer, the council chair, acting
chair or vice chair, shall serve as presiding officer.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
PART Ec-Air 202
RULEMAKING, EXPLANATIONS OF ADOPTED RULES, AND DECLARATORY RULINGS
Ec-Air 202.01 Rulemaking
Petitions.
(a) Any person may petition the council to adopt,
amend, or repeal a council rule by submitting an original rulemaking petition
and one copy in accordance with this section.
(b) Each rulemaking petition shall:
(1)
Conform to the filing requirements of Ec-Air
201.01;
(2) Be
clearly marked “Attention: Council Secretary” on the envelope;
(3) If
the rulemaking petition is a petition to amend or repeal a rule, identify
specifically the rule to be amended or repealed;
(4) If
the rulemaking petition is a petition to adopt or amend a rule, contain a draft
of the proposed rule or amendment;
(5)
State generally the nature and effect of the proposed rule, amendment,
or repeal; and
(6)
State in detail the reason(s) why the proposed rule, amendment, or
repeal will improve the accuracy, efficiency, or equity of the appeals process.
(c) A rulemaking petition may include exhibits,
illustrations, sworn statements, and any other such information as the
petitioner may deem relevant.
(d) At the council’s first meeting held more than
30 days from the receipt by the council secretary of the rulemaking petition,
the council shall either:
(1)
Deny the rulemaking petition unless it concludes that:
a. The
petition meets the requirements of paragraphs (a) and (b) above;
b. The
requested action is within the jurisdiction of the council;
c. The requested
action is consistent with statutory and case law;
d. The
requested action would not result in a rule that is incapable of practical
application or enforcement due to the absence of sufficient staff, funding, or
mechanisms of enforcement; and
e. The
requested action would likely improve the accuracy, efficiency, or equity of
the appeals process; or
(2)
Initiate rulemaking proceedings in accordance with RSA 541-A:4, I and
notify the petitioner.
(e) If the council denies the rulemaking petition
for failure to comply with the requirements of Ec-Air
202.01 (a) and (b) above, the council shall notify the petitioner of each such
failure to comply. Denial of a rulemaking petition under this paragraph shall
not prevent a petitioner from curing the identified defects and refiling the
rulemaking petition.
(f) The denial of a rulemaking petition shall not
entitle the petitioner to a hearing.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 202.02 Public
Comment for Rulemaking.
(a) The council shall hold at least one public
hearing on any proposed rulemaking. The presiding officer shall control the
conduct of any rulemaking hearing held in accordance with RSA 541-A:11.
(b) Control of the conduct of any rulemaking
hearing shall include, but not be limited to:
(1)
Calling the hearing to order;
(2)
Affording each person wishing to comment on the proposed rulemaking a
reasonable opportunity to speak;
(3)
Refusing to recognize for speaking or revoke the recognition of any
person who:
a.
Speaks in an abusive or disruptive manner;
b.
Fails to keep comments relevant to the proposed rules that are the
subject matter of the hearing; or
c.
Restates more than once what the person, or the organization or entity
upon whose behalf the person is speaking, has already stated;
(4)
Calling for recesses as needed; and
(5)
Adjourning the hearing.
(c) Persons who wish to testify at a public
comment hearing shall be asked to write on the speaker’s list:
(1)
Their full names and addresses; and
(2) The
name and address of any organization, entity, or other person whom they
represent, if any.
(d) Written comments, which may be submitted in
lieu of or in addition to oral testimony, shall:
(1)
Conform to the filing requirements of Ec-Air
201.01; and
(2) Be
clearly marked “Attention: Council Secretary” on the envelope.
(e) Public comment hearings shall be open to the
public and members of the public shall be allowed to testify, subject to
control of the presiding officer.
(f) All comments shall be recorded in full by
audio recording or other method that will provide a verbatim record of the
hearing.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 202.03 Requests
for Explanations of Rules as Adopted.
(a) Pursuant to RSA 541-A: 11, VII, any
interested person may, within 30 days of the final adoption of a rule, request
a written explanation of that rule by filing an original written request and
one copy in accordance with this section.
(b) The request for an explanation shall:
(1)
Conform to the filing requirements of Ec-Air
201.01; and
(2) Be
clearly marked “Attention: Council Secretary” on the envelope.
(c) The council shall, within 120 days of
receiving a request in accordance with (a) above, provide a written response
which:
(1)
Concisely states the meaning of the rule adopted;
(2)
Concisely states the principal reasons for and against the adoption of
the rule in its final form; and
(3)
States, if applicable, why the council was not persuaded by arguments
and considerations presented against the rule.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
202.04 Declaratory Rulings.
(a) Any person may petition the council in
writing for a declaratory ruling concerning the applicability of a council
rule, a statute within the council’s jurisdiction, or an order of the council
by filing an original written petition and one copy in accordance with this
section.
(b) The petition for a declaratory ruling shall:
(1)
Conform to the filing requirements of Ec-Air
201.01;
(2) Be
clearly marked “Attention: Council Secretary” on the envelope;
(3)
Cite in full the statute, council rule, or council order for which the
petitioner seeks a ruling;
(4)
Describe in detail the specific factual circumstances regarding which
the declaratory ruling is sought;
(5)
Contain the specific question presented, stated in terms of whether the particular statute, rule, or order would apply to the stated
factual circumstances; and
(6)
Include any explanation, argumentation, or exhibits that the petitioner
deems relevant and material to the petition.
(c) If the presiding officer determines that a
petition for declaratory ruling does not meet the requirements of Ec-Air 202.04(a) and (b), the presiding officer shall
promptly dismiss the petition and inform the petitioner, in writing, of the
defects necessitating dismissal of the petition. Dismissal of a petition for a
declaratory ruling under this paragraph shall not prevent a petitioner from
curing the identified defects and refiling the petition.
(d) At the council’s first meeting held more than
30 days from the receipt by the council secretary of the petition, the council
shall either:
(1)
Rule on the petition;
(2)
Request additional information from the petitioner, if it determines
that such additional information is necessary to rule on the petition; or
(3) Request
assistance from the department of justice, if it determines that such
assistance is necessary to rule on the petition.
(e) If the council requests additional
information or assistance under paragraph (d)(2) or (d)(3) above, it shall:
(1)
Inform the petitioner in writing within 30 days of the meeting at which
it determined that additional information or assistance was necessary; and
(2)
Rule on the petition at its first meeting held more than 30 days from
the receipt of such additional information or assistance.
(f) If the petitioner fails to produce necessary
information requested by the council pursuant to paragraph (d)(2) above within
30 days of informing the petitioner pursuant to paragraph (e)(1) above, the
presiding officer shall dismiss the petition. Dismissal of a petition for a
declaratory ruling under this paragraph shall not prevent a petitioner from
curing the identified defects and refiling the petition.
(g) The presiding officer shall issue to the
petitioner a written decision explaining the council’s ruling on the petition
within 30 days of the meeting at which the ruling was made.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
PART Ec-Air
203 APPEALS
Ec-Air 203.01 Initiating
an Appeal.
(a) Any person who wishes to appeal a department
decision shall file a notice of appeal and one copy in accordance with this
section and RSA 21-O:14, I-a.
(b) The notice of appeal shall:
(1)
Conform to the filing requirements of Ec-Air
201.01;
(2)
Conform to the notice of appeal requirements of RSA 21-O:14, I-a;
(3)
Identify and include a complete copy of the department decision being
appealed;
(4)
Include a clear and concise statement of facts and law that explains why
the department decision was unlawful or unreasonable; and
(5)
Include a certification statement that a notice of appeal has been
served in accordance with Ec-Air 201.03 and Ec-Air 203.01(d), specifying the name and electronic mail
address to whom the notice was sent.
(c) The notice of appeal may include such other
information as the appellant deems material and relevant, including
illustrations, charts, photographs, and sworn written testimony.
(d) The appellant shall serve the notice of
appeal to:
(1) The
director;
(2) Any
party to the department decision being appealed other than the appellant;
(3)
Each party listed on the copy line of the department decision being
appealed; and
(4) Any
party entitled to notice pursuant to RSA 482-A:10, V, if applicable.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.02 Preliminary
Notice of Appeal (PNA) and Offer to Enter into Settlement Discussions.
(a) Any person who wishes to file a preliminary
notice of appeal (PNA) and offer to enter into
settlement discussions shall file a PNA in accordance with this section and RSA
21-O:14, I-b.
(b) The PNA shall:
(1)
Conform to the filing requirements of Ec-Air
201.01;
(2)
Conform to the PNA requirements of RSA 21-O:14, I-b; and
(3) Be
clearly marked “Attention: Appeals Clerk” on the envelope.
(c) The appellant shall serve the notice of the
PNA either in person or via certified mail and in accordance with RSA 21-O:14,
I-b (b).
(d) Any party providing notice to the preliminary
appellant in accordance with RSA 21-O:14, I-b(d) shall submit a copy of the
notice to the appeals clerk by submitting a filing that conforms to the
requirements of Ec-Air 201.01.
(e) A notice of appeal filed pursuant to RSA
21-O:14, I-b(e) shall comply with Ec-Air 203.01.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
(a) Upon receipt of a notice of appeal, the
appeals clerk shall:
(1)
Docket the appeal;
(2) Notify
the attorney general and request appointment of a hearing officer to act as
presiding officer for the appeal in accordance with RSA 21-M:3, VIII; and
(3)
Inform the appellant of the docket number for the appeal.
(b) Upon appointment by the attorney general
pursuant to RSA 21-M:3, VIII, the hearing officer shall serve as presiding
officer for an appeal until removed or replaced by the attorney general.
(c) The presiding officer shall review the
notice of appeal and dismiss any appeal that, viewed in the light most
favorable to the appellant:
(1) Is
not timely filed;
(2)
Does not conform to the filing requirements of Ec-Air
203.01(b);
(3) Is
not within the jurisdiction of the council; or
(4) Does
not plead facts or law sufficient to:
a.
State a claim that the department decision was unlawful or unreasonable;
and
b.
Establish that the appellant has standing to bring the appeal.
(d) An order of dismissal under paragraph (c)
above shall:
(1)
Identify the defects in the notice of appeal that resulted in the
dismissal; and
(2)
Grant the appellant 30 days to cure all identified defects,
unless any of the defects is incurable and such opportunity to cure
would be futile. An opportunity to cure identified defects under this section
shall not include an opportunity to raise new claims not brought in the initial
appeal. The presiding officer shall dismiss with prejudice any new claims so
brought. In granting an appellant 30 days to cure identified defects, the
presiding officer shall specify whether the appellant must:
a.
Submit a fully revised notice of appeal; or
b. Submit a supplemental filing specifying
only the specified information or documentation omitted from the original
notice of appeal.
(e) If an appellant fails to cure defects in a
notice of appeal after having opportunity to do so pursuant to paragraph (d)(2)
above, the presiding officer shall dismiss the appeal with prejudice.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.04 Filings
in Appeals. Subsequent
to the filing of a notice of appeal, all filings in appeals shall:
(a) Conform to the filing requirements of Ec-Air 201.01;
(b) Identify the docket number for the filing, if
assigned;
(c) Be served prior to or on the date of filing
with the council upon all parties to the on the service list, as maintained
pursuant to Ec-Air 203.05; and
(d) Include a certification statement that the
filing has been served upon all parties to the appeal.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
203.05 Service List.
(a) The service list for each appeal shall
identify the name and service contact information for each party to the appeal.
Service contact information includes, at minimum, the party’s email address and
physical mailing address.
(b) A party may update its contact information in
the service list at any time by filing a notice in accordance with Ec-Air 203.04.
(c) Any person may request from the appeals clerk
a copy of the current service list for an appeal.
(d) Timely delivery to a party at any contact
information specified in the service list shall be deemed effective.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.07 Recusal.
(a)
Upon his or her own initiative or upon the motion of any party, a
council member or presiding officer, shall, for good cause recuse himself or
herself from any appeal. If a member recuses himself or herself, no
explanation of the reason for recusal shall be required from the member.
(b)
A party may move for the recusal of the presiding officer or any council
member by submitting a filing in accordance with Ec-Air 203.04 that
demonstrates good cause for the requested recusal.
(c)
Good cause for recusal shall exist if the council member or presiding
officer has had direct personal involvement with the matter under appeal or
with a party, such that a reasonable person would conclude that the council
member or presiding officer could not hear the appeal impartially. Mere general
knowledge of the issues, the appeal, or any party shall not constitute good
cause for recusal.
(d)
The presiding officer shall rule on all motions for recusal prior to any
hearing held on the merits of the appeal.
(e)
Upon recusal of a hearing officer acting as presiding officer, the
attorney general shall be requested to appoint a new hearing officer to the
appeal pursuant to RSA 21-M:3, VIII.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
(a)
A request to intervene shall conform to the requirements of RSA 541-A:32 and
Ec-Air 203.04.
(b)
The presiding officer shall rule on all petitions for intervention in
accordance with RSA 541-A:32.
(c)
Once a petition to intervene is granted, the intervenor shall be
entitled to participate in the proceeding as a party, subject to any
limitations imposed upon the intervention pursuant to RSA 541-A:32, III.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
(a) Unless made orally on the record as part of a
proceeding before the council or presiding officer, written motions shall be in
the form of a filing compliant with Ec-Air 203.04. A
party filing a motion or objection under this section shall submit an original
and one copy.
(b) A motion shall:
(1)
Include a clear and concise statement of the specific relief or ruling
requested;
(2)
Include a clear and concise statement of the facts and law that support
the motion; and
(3) For
written motions, be submitted no later than 30 days prior to the hearing on the
merits of the appeal.
(c) Any party filing a motion other than a
dispositive motion shall certify that a good faith attempt was made to obtain
concurrence in the relief sought. If the moving party has obtained concurrence,
a statement of concurrence shall be included in the body of the motion and the
motion shall contain the words “assented-to” in its title.
(d) Any party who would be adversely affected by
a ruling on the motion shall have an opportunity to object to the motion. The
lack of any objection shall not, in and of itself, constitute grounds for
granting the motion.
(e) An objection shall:
(1) Include
a clear and concise statement of the reasons the motion should be denied;
(2)
Include a clear and concise statement of the facts and law that support
denial of the motion;
(3) For
written motions, be submitted in the form of a filing compliant with Ec-Air 203.04 no later than 10 days after the filing date
of the motion; and
(4) For
oral motions, be made orally during the proceeding at which the oral motion was
made.
(f) After the opportunity to object pursuant to
paragraph (d) above, the presiding officer shall:
(1)
Rule on the motion, if he determines that no material facts are in
dispute and there is adequate information upon which to base a ruling as a
matter of law;
(2)
Request from the parties such additional information as is necessary to
rule on the motion, to be filed within such time as is reasonable and necessary
for the accurate and speedy resolution of the motion; or
(3)
Deny the motion if ruling on the motion would require the resolution of
a material factual dispute.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.11 Continuances
and Extensions.
(a) Any party may request the continuance of a
proceeding or the extension of a deadline by filing a motion with the presiding
officer in accordance with Ec-Air 203.09.
(b) The presiding officer shall grant any motion
for a continuance or extension if he or she determines that good cause has been
demonstrated, including:
(1) The
unavailability of a party, witness, or attorney necessary for a proceeding;
(2) The
likelihood that a proceeding will not be necessary because the parties have
reached or will imminently reach a settlement; or
(3) Any
other circumstances demonstrating that a continuance or extension would assist
in resolving the appeal fairly.
(c) An order granting a continuance or extension
shall specify the new date of the proceeding or deadline.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
203.12 Prehearing Conferences.
(a) At the request of any party to an appeal or
on his or her own initiative, the presiding officer shall schedule a prehearing
conference in accordance with RSA 541-A:31, V to consider:
(1)
Status of offers of settlement, including, if applicable, settlement
pursuant to mediation in accordance with RSA 21-O:14, I-b
and I-c;
(2)
Simplification of the issues;
(3)
Stipulations or admissions as to issues of fact or proof by consent of
the parties;
(4) The
witnesses to be called at the hearing and a brief description of each witness’s
testimony;
(5) The
exhibits to be presented at the hearing;
(6)
Changes to standard procedures as specified in these rules;
(7) The
date and time of the hearing in the appeal;
(8) The
time allotted to and the order of each party’s presentation at the hearing; and
(9) Any
other matters that may aid in the disposition of the appeal.
(b) Notwithstanding paragraph (a) above, the
presiding officer shall schedule no more than one prehearing conference in any
appeal, unless the presiding officer determines that an additional prehearing
conference is necessary for the fair, accurate, and expeditious resolution of
the appeal.
(c) At least 20 days prior to a prehearing
conference, the presiding officer shall issue a written notice that complies
with Ec-Air 203.06 and states:
(1) The
date, time, and location of the prehearing conference; and
(2) The
matters to be discussed, including those specified in paragraph (a) above.
(d) Any agreements reached at the prehearing
conference shall be documented in a prehearing order issued in accordance with Ec-Air 203.06.
(e) The prehearing conference shall be recorded
in full by audio recording or other method that will provide a verbatim record.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.13 Exchange
of Information.
(a) Unless otherwise agreed to at a prehearing conference,
the parties shall exchange the following information not less than one week
prior to the hearing in the appeal:
(1) A
list of witnesses expected to testify, including a brief description of each
witness’s testimony; and
(2) A
list of all exhibits to be presented at the hearing.
(b) Parties shall attempt in good faith to
respond in a complete and timely manner to requests for relevant, nonprivileged
information and documents in addition to the disclosures required under
paragraph (a) above.
(c) If good faith efforts to exchange information
pursuant to paragraph (b) above fail, any party may request that the presiding officer
issue a subpoena pursuant to RSA 21-M:3, X. A request for a subpoena shall
comply with Ec-Air 203.04.
(d) Within 7 days of receiving a request for a
subpoena, the presiding officer shall:
(1)
Grant the request and issue a subpoena, if he or she determines that the
information or document is relevant to the appeal and is not confidential,
privileged, or excessively burdensome; or
(2)
Deny the request.
Ec-Air 203.14 Hearings.
(a)
The presiding officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Administer oaths and affirmations;
(3) Receive relevant evidence at hearings and exclude
irrelevant, immaterial, or unduly repetitious evidence; and
(4) Rule on procedural requests, including
adjournments or postponements, at the request of a party or on the presiding
officer’s own motion.
(b) At least 20 days prior to a hearing, the
presiding officer shall issue a written notice that complies with Ec-Air 203.06 and includes:
(1) The
information required by RSA 541-A:31, III;
(2)
Instructions on marking exhibits for the hearing, if applicable; and
(3) Any
other information that the presiding officer deems necessary to the orderly
conduct of the hearing.
(c) Unless otherwise agreed to at a prehearing
conference, each party to an appeal shall, at any hearing, provide 15 hard
copies of all exhibits that the party plans to introduce at the hearing.
(d) Unless otherwise agreed to at a prehearing
conference, hearing testimony shall be offered in the following order:
(1) The
appellant and such witnesses as the appellant calls;
(2) The
department and such witnesses as the department calls; and
(3)
Intervenors and such witnesses as the intervenors call.
(e) At any time prior to the issuance of a
decision on the merits of an appeal, the presiding officer shall, on his or her
own initiative or on the motion of any party, reopen the record to receive
relevant, material, and non-duplicative evidence that was not available to the
proponent of the evidence at the time of the hearing and that is necessary to a
full and fair consideration of the appeal.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.15 Default. If any party to whom notice has been given in
accordance with Ec-Air 203.14(b) fails to attend a
hearing, the presiding officer shall declare the party to be in default and
shall either:
(a) Dismiss the appeal, if the party with the
burden of proof fails to appear; or
(b) Hear the testimony and receive evidence
offered by any party with burden of proof in the case.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.16 Evidence,
Burden of Proof, and Record.
(a) Evidence shall:
(1) Be
received in accordance with the provisions of RSA 541-A:33;
(2) Be admitted
unless excluded by the presiding officer as irrelevant, immaterial, unduly
repetitious, or legally privileged; and
(3) Be
public records unless the presiding officer determines that all or part of a
transcript or document is exempt from disclosure under RSA 91-A:5 or applicable
case law.
(b) Any objection to the admissibility of
evidence shall be filed as a motion compliant with Ec-Air
203.09 or stated as early as possible in the hearing, but not later than the
time when the evidence is offered.
(c) All testimony shall be made under oath or
affirmation administered in accordance with RSA 541-A:33, I.
(d) All evidence and testimony shall be subject
to cross-examination provided, however, that the presiding officer shall limit
cross-examination that is disorderly or disruptive to the orderly conduct of
the hearing.
(e) Any person offering testimony, evidence, or
argument shall state for the record his or her name and role in the proceeding.
If the person represents another person, the person being represented shall
also be identified.
(f) The party asserting a proposition shall bear
the burden of proving the truth of the proposition by a preponderance of the
evidence.
(g) The record of an appeal shall include:
(1) All
filings submitted in the appeal pursuant to Ec-Air
203.04;
(2) The
recordings of all hearings and prehearings;
(3) All
documents issued by the presiding officer or council pursuant to Ec-Air 203.06; and
(4) Any
other applicable items specified in RSA 541-A:31, VI.
(h)
After the conclusion of the final hearing on the merits of an appeal,
the record shall be closed and no other evidence shall be received into the
record unless, on the motion of any party or on the presiding officer’s own
initiative, the presiding officer determines that the submission of additional
evidence and rebuttal thereto is necessary to the full consideration of the
issues raised in the appeal and keeps the record open for such time as he or
she determines reasonably necessary to accept the additional evidence and
rebuttal into the record.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
203.17 Decisions.
(b) The final decision issued in any appeal
shall:
(1) Be
in writing and conform to the requirements of Ec-Air
203.06 and RSA 541-A:35;
(2)
Either affirm or remand the department decision being appealed;
(3)
State the reasons for the decision;
(4)
Inform the parties of any applicable rights to rehearing or appeal of
the decision.
(c) The council shall
keep any decision issued pursuant to paragraph (b) above on file in its records
for at least 5 years following the date of the final decision, unless the
director of the division of records management and archives of the department
of state sets a different retention period pursuant to rules adopted under RSA
5:40.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air 203.18 Rehearing.
(a)
A motion for rehearing shall conform to the requirements of RSA 541 and Ec-Air 203.09.
(b)
Within 10 days of the receipt of a motion for rehearing, the presiding
officer shall:
(1) Deny the motion if he or she concludes that:
a. The motion was not timely filed; or
b. The motion does not identify any error of
fact, reasoning, or law that could change the outcome of the appeal;
(2) Suspend the council’s decision and schedule
the motion for consideration by the council at the council’s next scheduled
meeting if he or she concludes that ruling on the motion requires consultation
with counsel; or
(3) Grant the motion, schedule a rehearing, and
suspend the council’s decision pending the outcome of the rehearing.
(c)
The presiding officer shall, consistent with Ec-Air 203.06, provide notice to the parties of any action taken
pursuant to paragraph (b) above.
(d)
The scope of a rehearing shall be limited to the issues upon which the
motion for rehearing was granted.
(e)
After a rehearing, the council shall issue a written decision,
consistent with Ec-Air 203.17, either affirming, reversing, or
modifying its initial decision and stating the reasons therefor.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Ec-Air
203.19 Request to Confirm Consistency
with Council Order.
(a) A request by a party pursuant to RSA 21-O:14,
I-a(d) to confirm that a revised decision by the commissioner is consistent
with the council’s remand order shall:
(1) Be in writing and conform to the filing
requirements of Ec-Air 203.04; and
(2)
Include a copy of the revised decision.
(b) Upon receipt of a request under paragraph (a)
above, the presiding officer shall, within 30 days:
(1)
Rule on the request, if he or she determines that doing so does not
require consultation with the council; or
(2) Refer
the request to the council for resolution at its next scheduled meeting.
(c) A request under paragraph (a) above shall not
entitle the requester to a hearing.
Source. (See Revision Note at chapter heading for Ec-Air 200) #13642, eff 5-23-23
Appendix
|
Rule |
Statute Rule is Intended to
Implement |
|
Ec-Air
101 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(a) |
|
Ec-Air
102 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(a) |
|
Ec-Air
103 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(a) |
|
Ec-Air
104 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(a); RSA 91‑A |
|
Ec-Air
201 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(b)(3); RSA 541-A:16, I(c); RSA 541-A:4; RSA 541-A:11 |
|
Ec-Air
202 |
RSA 21-O:11, V, RSA 541-A:16, I(c)-(d) |
|
Ec-Air
203 |
RSA 21-O:11; RSA 21-O:14; RSA 541-A:16, I(b)(2); RSA 541-A:30-a |