N.H. Code Admin. R. Ann. Env-C — Cross-Program Rules (Prior to 7-1-96 the subtitle Env-C designated rules assigned by Commissioner, and not by statute, to a particular Division. Pursuant to 1996, 228, effective 7-1-96, Commissioner assumed all former statutory responsibilities of Divisions. Pursuant to 1995, 226:5, effective 8-13-95, establishing RSA 21-G:9, II(b), the Commissioner has authority to adopt all rules under the Divisions of the Department. Pursuant to the rules reorganization plan approved on September 7, 2005, Env-C designates cross-program rules.)

Chapter Env-C 200 Rules of Practice and Procedure

Part Env-C 201 Purpose and Applicability

N.H. Code Admin. R. Ann. Env-C 201.01 Purpose {#sec-env-c-201.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 201.01}

(a) The purpose of the rules in Env-C 200 is to provide:

(1) Uniform procedures for the conduct of adjudicative and non-adjudicative proceedings;

(2) Uniform procedures for the submittal, review, and disposition of motions for reconsideration, rulemaking petitions, claims of confidentiality, and declaratory rulings;

(3) Uniform criteria for suspending, revoking, or refusing to issue or renew licenses issued by the department of environmental services; and

(4) Procedures for submitting requests to review department records and requests for determinations under RSA 72:12-a.

(b) These rules are intended to supplement the requirements of RSA 541-A and any procedures or criteria established under any statute implemented by the department of environmental services.

History

#4653, eff 7-27-89; ss by #4834, eff 6-4-90; ss by #5265, eff 10-31-91; ss by #5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 201.02 Applicability {#sec-env-c-201.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 201.02}

(a) The definitions in Env-C 202 and rules in Env-C 203 shall apply to all administrative proceedings conducted by the department of environmental services as described in Env-C 204 through Env-C 212, and shall be in addition to applicable requirements of RSA 541-A and the rules set forth in Env-C 204 through Env-C 212 as applicable to a specific type of proceeding.

(b) In the event that other department rules exist in sub-titles Env-A, Env-C, Env-Dw, Env-Hw, Env-Or, Env-Sw, Env-Wr, Env-Wq, or Env-Wt that establish procedures for specific programs or divisions, a rule in this chapter shall apply if the program-specific rules do not address the specific issue addressed by the rule in this chapter.

History

#4653, eff 7-27-89; ss by #5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07; amd by #10802-A, eff 3-24-15

Part Env-C 202 Definitions

N.H. Code Admin. R. Ann. Env-C 202.01 Applicant {#sec-env-c-202.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.01}

“Applicant” means the person who filed an application for a license or a request under RSA 72:12-a, as applicable to the proceeding.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.02 Commissioner {#sec-env-c-202.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.02}

“Commissioner” means the commissioner of the department.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.03 Department {#sec-env-c-202.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.03}

“Department” means the department of environmental services.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.04 Division {#sec-env-c-202.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.04}

“Division” means a “division”, as defined in RSA 21-G:5, VII, within the department that has primary responsibility for administering a statute, such as the air resources division, the waste management division, and the water division.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.05 Hearing {#sec-env-c-202.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.05}

“Hearing” means a component of a proceeding, through which the commissioner or designee receives testimony, evidence, or arguments, or any combination thereof.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.06 Intervenor {#sec-env-c-202.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.06}

“Intervenor” means a person allowed by the presiding officer to intervene in an adjudicative proceeding pursuant to RSA 541-A:32.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.07 License {#sec-env-c-202.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.07}

“License” means “license” as defined by RSA 541-A:1, VIII, namely “the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law.” The term includes any waiver issued under the applicable statute or rules, whether or not the waiver is explicitly incorporated into a license.

History

#8851-A, eff 3-25-07; ss by #12902-A, eff 10-22-19

N.H. Code Admin. R. Ann. Env-C 202.08 License action {#sec-env-c-202.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.08}

“License action” means an adjudicative proceeding initiated by the department to suspend, revoke, or refuse to renew a license.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.09 Oral adjudicative hearing {#sec-env-c-202.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.09}

“Oral adjudicative hearing” means a trial-type hearing that is part of an adjudicative proceeding that is held at a specific time and location for the purpose of receiving live testimony from witnesses, together with any evidence and argument that is presented in conjunction with such witnesses.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.10 Oral public hearing {#sec-env-c-202.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.10}

“Oral public hearing” means a legislative-type hearing that is part of a non-adjudicative proceeding that is held at a specific time and location for the purpose of receiving testimony from the public.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.11 Participant {#sec-env-c-202.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.11}

“Participant” means:

(a) For an adjudicative proceeding, a respondent, intervenor, or representative of the department for that adjudicative proceeding; or

(b) For a non-adjudicative proceeding, any person who attends the hearing or submits comments in writing on paper or by e-mail, or both.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.12 Participants {#sec-env-c-202.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.12}

“Participants” means:

(a) For an adjudicative proceeding, all respondent(s), intervenor(s), and representative(s) of the department for that adjudicative proceeding; or

(b) For a non-adjudicative proceeding, the collective group of persons who attend the oral public hearing or submit comments in writing on paper or by e-mail, or both.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.13 Person {#sec-env-c-202.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.13}

“Person” means, for each proceeding, “person” as defined by the statute pursuant to which the department regulates the subject matter of the proceeding.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.14 Proceeding {#sec-env-c-202.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.14}

“Proceeding” means the totality of the department’s handling of a matter, including the initiation, review, oral or record hearing, decision, and, if applicable, reconsideration of the matter. A proceeding is either adjudicative or non-adjudicative.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.15 Record hearing {#sec-env-c-202.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.15}

“Record hearing” means:

(a) For purposes of an adjudicative proceeding, the submittal by the participants of written testimony, evidence, and arguments prior to a specified deadline; or

(b) For purposes of a non-adjudicative proceeding, the submittal by an applicant, a permittee, and/or the public, as applicable to the proceeding, of information relating to the subject of the proceeding in writing on paper or by e-mail.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 202.16 Respondent {#sec-env-c-202.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 202.16}

“Respondent” means:

(a) For purposes of a license action, the person who holds a license or has applied for renewal of a license;

(b) For purposes of an administrative fine proceeding, the person against whom the department proposes to impose an administrative fine; or

History

#8851-A, eff 3-25-07

Part Env-C 203 Provisions Applicable to All Proceedings

N.H. Code Admin. R. Ann. Env-C 203.01 Computation of Time {#sec-env-c-203.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 203.01}

(a) Unless otherwise specified, all time periods shall be calendar days.

(b) Computation of any period of time shall begin with the first day following the day on which the act that initiates such period of time occurs and include the last day of the period so computed.

(c) For time periods not established in statute, if the last day of the period falls on a Saturday, Sunday, or state legal holiday, then the time period shall be extended to include the first state business day following the Saturday, Sunday, or state legal holiday.

(d) Time periods established in statute shall be determined as specified in the statute.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 203.02 Date of Issuance or Filing {#sec-env-c-203.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 203.02}

(a) All orders, decisions, notices, or other written correspondence or documents issued by or at the direction of the department shall be deemed to have been issued on the date noted on the document.

(b) All correspondence, petitions, applications, requests for findings of fact and conclusions of law, motions, requests for reconsideration, and any other written documents shall be deemed to have been filed with or received by the department on the actual date of receipt by the department, as evidenced by a date stamp placed on the document by the department in the normal course of business.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 203.03 Address Updates {#sec-env-c-203.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 203.03}

(a) Any respondent or intervenor in an adjudicative proceeding and any person who has filed a motion for reconsideration shall maintain a current mailing address and daytime telephone number and, if available, a fax number and e-mail address, on file with the presiding officer until completion of the matter.

(b) Notices mailed by first class mail, postage prepaid, to the address on file with the presiding officer shall be presumed to have been received by the addressee.

(1) The date compliance is achieved or the fine is paid, if applicable;

(2) The expiration of the time period allowed by law for appealing the subject decision, if no appeal is filed within that time; or

(3) The date of the final decision on the last appeal taken.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 203.04 Waiver of Rules {#sec-env-c-203.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 203.04}

(a) Subject to (g), below, any participant in an adjudicative or non-adjudicative proceeding or otherwise affected by the rules in Env-C 200 may request the presiding officer to waive any rule in Env-C 200 for good cause. If no presiding officer has been designated, the requestor shall direct the request to the commissioner.

(b) Waiver requests made in conjunction with an adjudicative proceeding shall be in the form of a motion that is filed and handled in accordance with Env-C 204.17.

(1) Be in written form, unless made in response to a matter asserted for the first time at an oral public hearing or on the basis of information which was not received in time to prepare a written request prior to the hearing at which the request is made;

(2) Contain a clear and concise statement of the reason(s) why the waiver is being requested, including a statement of the impact on the requestor if the waiver is not granted; and

(3) Be included in the record of the proceeding if in writing, or recorded in full in the record of the hearing if made at an oral public hearing.

(d) If the presiding officer finds that a request made orally at an oral public hearing requires additional information in order to be fully and fairly considered, the presiding officer shall direct the requestor to submit the request in writing, with supporting information, within 3 state business days of the date of the oral request. If other participants in the proceeding wish to respond to the request, the response(s) shall be filed no later than 7 days after the request is filed.

(e) The presiding officer shall rule upon a waiver request after full consideration of all factors relevant to the request.

(f) For purposes of this section, good cause shall be determined with reference to the rule for which the waiver is sought. If good cause is not specifically defined in the rule for which a waiver is sought, good cause shall be deemed to exist if:

(1) Compliance with the rule cannot be achieved due to circumstances beyond the control of the person requesting the waiver and waiving the rule will not materially prejudice any other person;

(2) Compliance with the rule would work a hardship on the person requesting the waiver and waiving the rule will not prejudice any other person; or

(3) Compliance with the rule would otherwise be counterproductive to the purpose of the proceeding in which the waiver is sought, given the specific circumstances of the proceeding and the reason(s) for the waiver request.

(g) No waiver shall be granted to any rule that reflects a statutory or constitutional requirement without the consent of the person(s) to whose benefit the provision operates.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

Part Env-C 204 Adjudicative Proceedings

N.H. Code Admin. R. Ann. Env-C 204.01 Applicability {#sec-env-c-204.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.01}

The rules in Env-C 204 shall apply to any proceeding initiated by the department:

(a) Under its authority to suspend, revoke, or refuse to renew a license or impose an administrative fine, or both; or

(b) For which other departmental rules explicitly reference the adjudicative proceedings requirements of Env-C 200.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.02 Presiding Officer {#sec-env-c-204.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.02}

The presiding officer for an adjudicative proceeding shall be the commissioner or designee.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.03 Authority of Presiding Officer {#sec-env-c-204.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.03}

The presiding officer in an adjudicative proceeding shall:

(a) Regulate and control the course of the proceeding;

(b) Administer oaths and affirmations at oral adjudicative hearings;

(d) Dispose of procedural requests, including adjournments or continuances, at the request of a participant or on the presiding officer’s own motion;

(e) Rule on issues of evidence;

(f) Question any person who testifies;

(g) Cause a complete record of the proceeding to be made; and

(h) Take any other action consistent with applicable statutes and rules necessary to conduct the proceeding and complete the record in a fair and timely manner.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.04 Withdrawal of a Presiding Officer {#sec-env-c-204.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.04}

(a) A participant may request the presiding officer to withdraw from a matter for good cause.

(b) A request for the presiding officer to withdraw shall be in the form of a motion that is filed and handled in accordance with Env-C 204.17.

(c) For purposes of this section, good cause for withdrawal shall be that the presiding officer has an objectively-demonstrated bias for or against one or more of the participants. Good cause shall not include that the presiding officer is an employee of the department.

(d) The person requesting the withdrawal of the presiding officer shall support the request with sworn testimony or other evidence submitted with the motion.

(e) For purposes of this section, an “objectively-demonstrated bias” means that the person requesting the presiding officer to withdraw submits evidence that shows, by a preponderance of the evidence, that the presiding officer has had personal dealings with a participant that would cause a reasonable person to believe that as a result of the dealings, the presiding officer will discount or ignore evidence and law to find in favor of or against that participant.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.05 Burden and Standard of Proof {#sec-env-c-204.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.05}

(a) In all adjudicative hearings, the participant asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

(b) In a hearing held to determine whether a license that has already been issued should be suspended, revoked, or not renewed, the department shall bear the overall burden of proof by a preponderance of the evidence.

(c) In a hearing held to determine whether an administrative fine should be imposed, the division that initiated the proceeding shall bear the overall burden of proof by a preponderance of the evidence.

(d) In any hearing held on a motion to reconsider a decision that was made in accordance with applicable legal procedures, the person seeking to overturn the decision shall bear the overall burden of proving that the decision was unlawful or unreasonable by a preponderance of the evidence.

(e) For purposes of this section, proof by a preponderance of the evidence means what is sought to be proved is more probable than not.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.06 Notice {#sec-env-c-204.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.06}

(a) The department shall send notice of the initiation of an adjudicative proceeding to each respondent in accordance with (g), below.

(b) The notice sent pursuant to (a), above, shall state:

(1) The docket number assigned to the proceeding by the department;

(2) The action the department is proposing to take;

(3) The statutory authority for the department to take the action;

(4) The facts and law that support the proposed action; and

(5) That the respondent has the opportunity for a hearing prior to a final decision being made by the department.

(c) If the department has already scheduled an oral adjudicative hearing for the matter when the notice required by (a), above, is prepared, the notice shall also state:

(1) The date, time, and location of the oral adjudicative hearing;

(2) That the respondent has the right to have an attorney present to represent the respondent at the respondent’s expense; and

(3) If the proceeding relates to the respondent’s occupational license, that the respondent may request the department to provide a certified shorthand court reporter at the respondent’s expense and that any such request shall be submitted in writing at least 10 days prior to the hearing.

(d) If the department schedules an oral adjudicative hearing subsequent to sending notice pursuant to (a), above, the department shall send a written notice that includes the docket number and the information specified in (c)(1) - (3), above, to each respondent and intervenor, if any, in accordance with (g), below.

(e) If other persons who are not intervenors notify the department that they are interested in attending the hearing, the department shall send notice to such persons by first-class mail.

(f) If an oral adjudicative hearing is rescheduled for any reason, the department shall give written notice of the date, time, and place of the rescheduled hearing by delivery in hand or by first class mail to the respondent(s), any intervenor(s), and any person(s) who received notice of the original hearing pursuant to (e), above.

(g) The department shall send the notice required by (a) or (d), above, by certified mail, return receipt requested. If the certified mail is not accepted, the notice shall be delivered by any method that is allowed for serving civil writs or other process as specified in RSA 510:2, RSA 510:4, or RSA 510:8 -17, as applicable.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.07 Appearance and Representation {#sec-env-c-204.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.07}

(a) A participant may be represented by an attorney licensed to practice law in New Hampshire or such other individual as the person designates. The representative shall notify the presiding officer of such representation in writing by filing an appearance in accordance with (b), below.

(b) The appearance filed by the representative shall include the following information:

(1) A brief identification of the matter in which the representative will appear;

(2) A statement as to whether or not the representative is an attorney and if so, whether s/he is licensed to practice in New Hampshire; and

(3) The representative’s mailing address and daytime telephone number and, if available, an e-mail address and fax number.

(c) Nothing in these rules shall be construed to allow or encourage the unauthorized practice of law as defined by the New Hampshire supreme court or the New Hampshire general court.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.08 Filing and Service of Documents; Signatures {#sec-env-c-204.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.08}

(a) Any participant wishing to file any written document(s) for inclusion in the record of an adjudicative proceeding shall deliver the original and one copy of the document to the presiding officer.

(b) Any document so filed shall:

(1) Specify the docket number assigned by the department to the matter; and

(2) Be signed by the participant filing the document or by that participant’s representative.

(1) The signer has read the document;

(2) The signer is authorized to file it;

(3) To the best of the signer’s knowledge, information, and belief, there are good grounds to support it; and

(4) The document has not been filed for purposes of delay or harassment.

(d) Any person filing any document as provided in (a), above, shall serve the document on all other participants of record by delivering a copy of the document to such participants by one of the methods specified in (f), below, at the time the document is filed.

(e) The person filing the document shall also file a statement certifying that copies have been or are being delivered to all other participants as required by this section.

(f) Delivery of documents pursuant to this section shall be by:

(1) Delivery in hand to the recipient or, if the recipient is unavailable, to the recipient’s representative, in which case the person delivering the document shall sign a statement indicating the date and time of delivery and the identity of the person receiving the document;

(2) First class mail to the recipient, postage prepaid, in which case a certificate of mailing shall be obtained by the person sending the document;

(3) Certified mail to the recipient, return receipt requested;

(4) Unites States Postal Service express delivery service to the recipient; or

(5) Private express delivery service, such as Federal Express® or UPS®, to the recipient.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.09 Prehearing Conference {#sec-env-c-204.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.09}

(a) Any participant may request a prehearing conference in accordance with RSA 541-A:31, V.

(b) In lieu of or in addition to a prehearing conference, the participants may submit motions in accordance with Env-C 204.17 for changes to or waivers of the standard procedures as specified in these rules or other matters concerning the conduct of the proceeding.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.10 Pre-hearing Exchange of Information {#sec-env-c-204.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.10}

(a) Unless otherwise agreed to at a prehearing conference, more than one week prior to the commencement of an oral adjudicative hearing each participant shall provide the following to each other participant:

(1) A list identifying each witness the participant expects to call at the hearing with a brief description of that witness’s anticipated testimony; and

(2) A list of the exhibits the participant expects to present at the hearing.

(b) If a participant wishes to obtain information other than that specified in (a), above, from another participant, the requesting participant shall request the information in writing and shall deliver the request to the presiding officer and the other participants as provided in Env-C 204.08.

(c) Requests pursuant to (b), above, shall be limited to information directly related to the matter for which the proceeding is being conducted.

(d) A participant receiving a request for information pursuant to (b), above, shall respond to the request within 10 days by:

(1) Providing the information requested;

(2) Explaining why the information will not be provided; or

(3) Identifying a date and time when the information can be made available for inspection, which date and time shall be sufficiently in advance of the hearing on the matter that the information can be reasonably reviewed prior to the hearing.

(e) A participant who has received a request for information pursuant to (b), above, may decline to provide information that the participant believes is:

(1) Confidential;

(2) Privileged;

(3) Not directly related to the matter at hand; or

(4) Excessively burdensome to produce.

(f) If a participant declines to provide information pursuant to (e), above, the explanation provided pursuant to (d)(2), above, shall include a detailed explanation of the reason(s) why the information is not being provided.

(g) A participant who has requested information pursuant to (b), above, that is not provided may request the presiding officer to require the participant of whom the information was requested to provide the information. Such requests shall be in the form of a written motion that is filed and handled in accordance with Env-C 204.17.

(h) The participant shall file a motion pursuant to (g), above, within 7 days of receiving the denial of the information under (e), above, but no later than 5 days prior to the scheduled hearing. No motion shall be accepted within 5 days before a scheduled hearing unless the presiding officer determines that good cause exists for the late filing. For purposes of this paragraph, good cause shall mean that the participant requesting the information did not discover the existence of the information in time to request the information, receive the denial, and file a timely motion and could not have discovered the existence of the information with reasonable diligence.

(i) If in ruling on a motion filed pursuant to (h), above, the presiding officer determines that the requesting participant will be materially prejudiced in the case being heard by the lack of the requested information, and the participant asked to provide the information fails or refuses to provide it, the presiding officer shall fashion such remedy as is appropriate to the circumstances, including:

(1) Delaying the hearing until the information is provided;

(2) Ruling that such information shall not be admissible at the hearing on the matter or in any subsequent proceeding on the matter, unless the information is already a matter of public record; or

(3) Finding in favor of the requesting participant.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.11 Hearings in Adjudicative Proceedings {#sec-env-c-204.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.11}

(a) Subject to (e), below, the participants in an adjudicative proceeding may request the presiding officer to allow a record hearing in lieu of an oral hearing. Such a request shall be made by a motion filed in accordance with Env-C 204.17 that includes a proposed schedule for submittal of written testimony, evidence, and arguments.

(b) The presiding officer shall allow a record hearing in lieu of an oral hearing only if:

(1) All participants agree to the record hearing and waive their right to cross-examine on all testimony and evidence presented;

(2) Resolution of the matter will not hinge on the credibility of any witness; and

(3) The presiding officer believes that the record hearing will allow a full and fair consideration of the issues in dispute.

(c) If the participants agree to a record hearing, the presiding officer shall establish deadline(s) by which the participants must file their written testimony, evidence, and arguments and notify the participants of the deadline(s) in writing. Any requests for extension of the deadlines shall be filed and handled as specified in Env-C 204.21.

(d) Any written testimony provided as part of a record hearing shall be made under oath or affirmation.

(e) If the credibility of a witness is at issue in an adjudicative proceeding, the presiding officer shall conduct an oral hearing as required by Petition of Grimm, 138 N.H. 42 (1993).

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.12 Record of the Proceeding {#sec-env-c-204.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.12}

(a) The record of an adjudicative proceeding for which the hearing is a record hearing shall comprise:

(1) The notice(s) sent by the department pursuant to Env-C 204.06;

(2) Any written response(s) to such notice(s);

(3) All other correspondence between the department and a respondent or intervenor that relates to the proceeding;

(4) All testimony, evidence, and arguments submitted by the participants;

(5) All motions, objections or other responses to motions, and requests for findings of fact and rulings of law submitted by the participants;

(6) Any information of which official notice was taken pursuant to Env-C 204.16(b); and

(7) All rulings of the presiding officer.

(b) The record of an adjudicative proceeding for which the hearing is an oral adjudicative hearing shall comprise:

(1) All information specified in (a), above; and

(2) A tape recording or other verbatim record of the oral hearing.

(c) The record of an adjudicative proceeding shall be available for inspection by any person in accordance with Env-C 210.05.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.13 Opening an Oral Adjudicative Hearing {#sec-env-c-204.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.13}

The presiding officer shall open an oral adjudicative hearing by describing in general terms the purpose of the hearing and procedures governing its conduct.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.14 Testimony at an Oral Adjudicative Hearing {#sec-env-c-204.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.14}

(a) All testimony at an oral adjudicative hearing shall be in accordance with RSA 541-A:33, I.

(b) Any individual offering testimony, evidence, or arguments shall state his/her name and address on the record. If the individual is representing another person, the person being represented shall also be identified by name and address.

(1) The department and such witnesses as the department calls;

(2) The respondent and such witnesses as the respondent calls; and

(3) Any intervenor(s) and such witnesses as the intervenor(s) call.

(d) Any person offering testimony shall be subject to cross-examination as provided in Env-C 204.15.

(e) Any person included within (c)(1) through (3), above, who wishes to submit written testimony at the hearing in addition to oral testimony shall do so to the presiding officer, provided the person signs and dates such testimony and the presiding officer determines, as required by RSA 541-A:33, II, that the interests of the other participants will not thereby be prejudiced substantially. The person submitting written testimony shall give a copy of such testimony to each party. All participants shall have the opportunity to cross-examine the witness on and offer rebuttal testimony to the testimony.

(f) The presiding officer shall terminate any comments, questions, or discussions that are not relevant to the subject of the hearing.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.15 Cross-Examination at an Oral Adjudicative Hearing {#sec-env-c-204.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.15}

(a) If necessary to clarify information presented by a witness or some other aspect of the matter at hand, the presiding officer at an oral adjudicative hearing shall question the witness during or at the conclusion of testimony of that witness.

(b) The presiding officer shall allow the participants or their representatives to cross-examine each witness at the conclusion of the testimony of the witness.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.16 Evidence {#sec-env-c-204.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.16}

(a) Evidence that is relevant and material to the subject matter of the adjudicative proceeding in which it is offered shall be admissible.

(b) Whenever necessary for a full and fair consideration of the matter, the presiding officer shall take official notice in accordance with RSA 541-A:33, V.

(c) The presiding officer or designee shall mark all documents, materials, and objects accepted as exhibits with the docket number and a number or other notation to identify the exhibits in a sequential manner.

(d) If the original of a document is not readily available, the documentary evidence shall be received in the form of copies or excerpts.

(e) All written testimony and documents, materials, and objects admitted into evidence at an oral adjudicative hearing shall be made available during the course of the hearing for examination by any participant. After the hearing, all such evidence shall be available for review in accordance with Env-C 210.05.

(f) In any proceeding involving an application, the division shall place into evidence the application, including any plans or other attachments and any amendments thereto but excluding any information determined to be confidential business information pursuant to Env-C 208.

(g) Any person who objects to a ruling of the presiding officer regarding evidence or procedure made during an oral adjudicative hearing shall state the objection and the grounds therefor at the time the ruling is made. Any person who objects to a ruling of the presiding officer regarding evidence or procedure made at a time other than during an oral adjudicative hearing shall file a written objection to the ruling in the form of a motion within 5 state business days of the date of the ruling. Nothing herein shall be construed as independent authorization for interlocutory appeal of rulings of the presiding officer on issues of evidence or procedure.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.17 Motions {#sec-env-c-204.17 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.17}

(a) Motions shall be in writing, unless made in response to a matter asserted for the first time at an oral adjudicative hearing or on the basis of information which was not received in time to prepare a written motion prior to the oral adjudicative hearing at which the motion is presented.

(b) Prior to filing a written motion, the participant filing the motion shall seek concurrence with the relief requested in the motion from the other participant(s), provided however that if the motion would result in a ruling that is adverse to another participant’s interests, the moving participant shall not be required to seek concurrence from that participant.

(1) Contain a clear and concise statement of the facts and law that support the motion;

(2) State the specific relief or ruling requested;

(3) State whether the other participants concur with the motion; and

(4) Be signed as required by Env-C 204.08.

(d) Any participant who did not concur with the motion in advance who wishes to respond to a written motion shall file the response no later than 7 days after the motion was filed.

(e) Motions made orally at an oral adjudicative hearing shall be recorded in full on the record of the hearing. Subject to (f), below, responses to oral motions shall be made orally during the hearing at which the motion is made.

(f) If the presiding officer finds that a motion made orally at an oral adjudicative hearing requires additional information in order to be fully and fairly considered, the presiding officer shall direct the participant who made the motion to submit the motion in writing, with supporting information, within 3 state business days of the date of the oral motion. If other participants in the proceeding wish to respond to the motion, the response(s) shall be filed no later than 7 days after the written motion is filed.

(g) The presiding officer shall rule upon a motion after full consideration of all factors relevant to the motion.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.18 Proposed Findings of Fact and Conclusions of Law {#sec-env-c-204.18 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.18}

(a) Any participant in an adjudicative proceeding may submit proposed findings of fact and conclusions of law to the presiding officer.

(b) For proceedings in which an oral adjudicative hearing is scheduled and a prehearing conference is held, the proposed findings of fact and conclusions of law shall be submitted by the date established at the prehearing conference.

(c) If all participants have not submitted proposed findings of fact and conclusions of law and the presiding officer determines that proposed findings of facts and conclusions of law would serve to clarify the issues presented in the proceeding, the presiding officer shall request the participants to submit proposed findings of fact and conclusions of law by a specified date, which date shall be no later than 10 days following the deadline for submittal for a record hearing or the date on which an oral adjudicative hearing was held.

(d) In any case where proposed findings of fact and conclusions of law are submitted, the decision shall include rulings on the proposals.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.19 Failure to Appear at an Oral Adjudicative Hearing {#sec-env-c-204.19 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.19}

If any participant to whom notice of an oral adjudicative hearing has been given in accordance with Env-C 204.06 fails to appear at the hearing and fails to advise the presiding officer of such non-appearance in advance of the hearing, the presiding officer shall hear the evidence and testimony of the participant(s) attending the hearing and render an opinion based thereon, subject to Env-C 204.20.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.20 Reconvening of Oral Adjudicative Hearings {#sec-env-c-204.20 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.20}

(a) If an oral hearing is held in a participant’s absence pursuant to Env-C 204.19, the participant may file a motion within 10 days after the date of the hearing to reconvene the hearing.

(b) The motion to reconvene the hearing shall include an explanation of why the participant did not attend the hearing and why the participant did not notify the presiding officer in advance of the hearing, which explanation shall be supported by affidavits or other evidence.

(c) If the submitted evidence shows that good cause exists to explain the participant’s failure to appear at the hearing and to explain the participant’s failure to notify the presiding officer in advance of the hearing, the hearing shall be reconvened and testimony and evidence offered by the participant shall be received.

(d) For purposes of this section, good cause shall be limited to circumstances beyond the control of the participant which render the participant unable to attend the hearing and unable to notify the presiding officer in advance of the hearing.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.21 Rescheduling or Continuing Oral Adjudicative Hearings; Extension of Deadlines in Record Hearings {#sec-env-c-204.21 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.21}

(a) Any participant in an adjudicative proceeding in which an oral adjudicative hearing has been scheduled or for which deadlines in a record hearing have been set may request the presiding officer to reschedule the hearing or extend the deadlines, as applicable, for reasonable cause. Reasonable cause shall include, but not be limited to, that an individual participant, a representative, or critical witness is unavailable or that the participants believe a settlement is possible and need more time to resolve the matter.

(b) Prior to requesting the rescheduling of an oral adjudicative hearing or the extension of deadlines in a record hearing, the participant shall seek concurrence with the request from the other participant(s).

(1) Be in writing;

(2) Be made as much in advance of the hearing or deadline, as applicable, as practicable given the reason for the request; and

(3) State whether the other participant(s) agree to the request.

(d) The participant making the request shall serve a copy of the request on each other participant in accordance with Env-C 204.08.

(e) The presiding officer shall notify the participants of his/her ruling on a request that is filed in accordance with (a) - (d), above, in advance of the hearing or deadline, as applicable. If the request is not received sufficiently in advance of the hearing or deadline, as applicable, to allow a decision to be mailed and received prior to the scheduled hearing date or deadline, as applicable, the presiding officer shall inform the participants of the ruling by telephone, fax, or e-mail.

(f) If the need for an oral adjudicative hearing to be continued arises after the start of the hearing or within such time of the hearing as to make filing a written motion impracticable, a participant may request a continuance orally on the record.

(g) The presiding officer shall grant the requested continuance if s/he determines that reasonable cause exists and that any prejudice caused by granting the request would be outweighed by any prejudice caused by denying the request.

(h) If the presiding officer grants a request for a continuance made orally on the record and the date, time, and place for the continued hearing are known at the time of the hearing that is being continued, the presiding officer shall state the new date, time, and place on the record. If such later date, time, and place are not known at the time of the hearing that is being continued, the presiding officer shall notify all participants, all representatives that have filed an appearance in accordance with Env-C 204.07, and all other persons who received the notice of the original hearing pursuant to Env-C 204.06(e), in accordance with (e), above.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.22 Close of the Record {#sec-env-c-204.22 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.22}

(a) In an adjudicative proceeding, the presiding officer shall not accept any evidence, testimony, exhibits, or arguments into the record, except as allowed by (b), below, or pursuant to Env-C 204.23, after:

(1) The conclusion of an oral adjudicative hearing; or

(2) The date specified pursuant to Env-C 204.11(b) for submittal of written testimony, evidence, and argument in a record hearing.

(b) Prior to the conclusion of an adjudicative oral hearing, a participant may request that the record be left open for a specified period of time to accommodate the filing of evidence, exhibits, or arguments not available at the hearing. If the other participants have no objection or if the presiding officer determines that such material is necessary to a full consideration of the issues raised in the appeal, the presiding officer shall designate a specific time period for the record to remain open to receive the material.

(c) The participant filing such additional material shall also serve a copy of all material filed to each other participant in accordance with Env-C 204.08.

(d) If any other participant requests time to respond to the material submitted, the presiding officer shall set a specific time period following filing of the material for the filing of a response. If any other participant requests the opportunity to cross-examine on the additional material submitted, the presiding officer shall set a date and time for an oral adjudicative hearing at which cross-examination on the additional material shall be allowed, if the presiding officer determines that cross-examination on the additional material is required for a full and true disclosure of the facts.

(e) The determination to allow cross-examination shall be based on:

(1) The nature of the factual and legal issues in dispute in the proceeding;

(2) The testimony and evidence submitted during the hearing and any cross-examination thereon; and

(3) The nature of the additional material to be submitted.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.23 Reopening of the Record {#sec-env-c-204.23 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.23}

(a) At any time prior to the issuance of the decision on the merits of the issue(s) that form the subject of the adjudicative proceeding, the presiding officer on his/her own motion or on the motion of any participant shall reopen the record to receive relevant, material, and non-duplicative testimony, evidence, or arguments not previously received.

(b) If a request to reopen the record is not made while all participants are in attendance at an oral adjudicative hearing, the requesting participant shall put the request in writing and file the request with the presiding officer and serve the request on each other participant in accordance with Env-C 204.08.

(c) If the presiding officer determines that such testimony, evidence, or arguments are necessary to a full consideration of the subject of the proceeding, the presiding officer shall reopen the record to accept the offered items.

(d) To reopen the record, the presiding officer shall:

(1) Give written notice of such further proceedings if the participants are no longer present;

(2) Notify other interested persons in a manner as is appropriate to ensure that reasonable notice is given of the further proceedings; and

(3) Notify the other participants of the deadline by which they may respond to or rebut the items made part of the record.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.24 Decisions {#sec-env-c-204.24 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.24}

(a) The presiding officer shall make a decision on the merits only after full consideration of the record. In the event an oral adjudicative hearing is held pursuant to Env-C 204.19, no decision shall be made prior to the expiration of the 10-day period allowed for filing of a motion to reconvene the hearing.

(b) If the presiding officer is a designee of the person having the authority to make the decision in the case, the presiding officer shall submit a written recommendation to the decision-maker that contains the following:

(1) The subject of the proceeding, including identification of the relevant statute(s) and rule(s);

(2) The names and addresses of all participants;

(3) The names and affiliations of all individuals who presented testimony either orally or in writing and a summary of the testimony received;

(4) A description and discussion of all other evidence and argument presented;

(5) Proposed findings and conclusions, including proposed rulings on any proposed findings of fact and rulings of law submitted by the participants; and

(6) A recommended decision.

(c) For purposes of an administrative fine proceeding, if the division proves by a preponderance of the evidence that the violation for which a fine is sought occurred and that the respondent is legally liable for the violation, the recommendation in (b) above, shall include a fine for that specific violation, consistent with the applicable schedule of fines, subject to (d) and (e) below.

(d) The amount of fine imposed for a specific violation shall be reduced by 10% for each of the following that apply to that specific violation:

(1) In the case of a non-continuing or one-time offense, where all of the following are true:

a. The violation has not continued or recurred as of the time of the hearing; and

b. The respondent did not derive any direct or indirect economic benefit from the violation;

(2) The respondent proves, by a preponderance of the evidence, that they made a good faith effort to comply with the statute(s), rule(s), or permit(s) involved and that the violation occurred despite those efforts;

(3) The respondent proves, by a preponderance of the evidence, that they have no history of non-compliance with the statute(s), rule(s), or permit(s) of the department; or

(4) The respondent proves, ss by a preponderance of the evidence, information favorable to their case which was not known to the division at the time the fine was proposed.

(e) The amount of fine imposed for a specific violation shall be increased by 10% for each of the following that apply to that specific violation, up to the maximum fine stated in the statute under which the division is seeking the fine(s):

(1) The division proves, by a preponderance of the evidence, that the respondent derived some direct or indirect economic benefit from the offense;

(2) The division proves, by a preponderance of the evidence, that the respondent did not act in good faith to remedy the violation(s) for which the fine is sought; or

(3) The division proves, by a preponderance of the evidence, that the respondent has a history of non-compliance with the statute(s), rule(s), or permit(s) of the department.

(f) After reviewing the record of the proceeding and the written recommendation submitted pursuant to (b), above, if applicable, the person having decision-making authority shall issue a written decision to all participants that:

(1) Summarizes the nature of the proceeding;

(2) States the decision;

(3) States the findings and conclusions upon which the decision is based; and

(4) If proposed findings of fact and conclusions of law were submitted, states the rulings made on the proposal

History

#8851-A, eff 3-25-07; ss by #13894, eff 3-1-24

N.H. Code Admin. R. Ann. Env-C 204.25 Retention of Decisions {#sec-env-c-204.25 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.25}

(a) Subject to (b), below, the department shall maintain on file such written decisions or orders as are issued pursuant to Env-C 204.24 as follows:

(1) For decisions or orders that are not appealed, for no less than 5 years from the date of the decision or order; and

(2) For decisions or orders that are appealed, for no less than 5 years from the date of the final decision on appeal.

(b) If the director of the division of records management and archives of the department of state sets a retention period, pursuant to rules adopted under RSA 5:40, for written decisions or orders issued pursuant to RSA 541-A:35 of longer than 5 years, the department shall maintain such written decisions or orders on file for such longer period.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 204.26 Roles in Disciplinary and Enforcement Proceedings {#sec-env-c-204.26 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 204.26}

In any adjudicative proceeding, the following persons shall have the role(s) indicated:

(a) Intervenors shall participate as specified in the presiding officer’s order issued pursuant to RSA 541-A:32, V;

(b) The individual designated to represent the department shall present testimony, evidence, and argument and otherwise serve as the department’s point of contact for the proceeding;

(d) Complainants shall present testimony and evidence only if called as a witness by a participant.

History

#8851-A, eff 3-25-07

Part Env-C 205 Non-Adjudicative Proceedings

N.H. Code Admin. R. Ann. Env-C 205.01 Applicability {#sec-env-c-205.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.01}

These rules shall apply to proceedings conducted by the department to:

(a) Adopt, readopt, amend, or repeal rules;

(b) Review applications for licenses and issue decisions thereon;

(d) Provide information and receive public comment in any other matter that is not an adjudicative proceeding covered by Env-C 204.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.02 Presiding Officer {#sec-env-c-205.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.02}

(a) The presiding officer for a non-adjudicative proceeding shall be the commissioner or designee.

(b) The presiding officer in a non-adjudicative proceeding shall:

(1) Receive relevant information and public comments;

(2) Cause a complete record of the proceeding to be made; and

(3) Take any other action consistent with applicable statutes and rules necessary to conduct the proceeding and complete the record in a fair and timely manner.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.03 Non-Adjudicative Oral Public Hearings {#sec-env-c-205.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.03}

(a) The department shall conduct an oral public hearing in a non-adjudicative proceeding:

(1) When proposing to adopt, readopt, amend, or repeal rules;

(2) To receive oral public comment on a license application if required by the statute or rules specific to such applications;

(3) For any matter for which the department is required by law or by these rules to hold an oral hearing in a proceeding that is not an adjudicative proceeding pursuant to Env-C 204.01; and

(4) For any other non-adjudicative matter for which the law does not require the department to hold an oral hearing but for which the department believes an oral public hearing would be of benefit.

(b) For any case in which an oral hearing is not required pursuant to (a), above, the department shall proceed with a record hearing.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.04 Notice {#sec-env-c-205.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.04}

Notice of the date, time, and place of an oral public hearing shall be given as follows:

(a) For a rulemaking hearing held pursuant to RSA 541-A:3, IV, by publication as specified in RSA 541-A:6;

(b) For an oral public hearing held on a license application, as specified in the department’s rules specific to such license; or

(c) For any other oral public hearing, by such means as the commissioner determines will notify those persons likely to be interested in the most cost-effective manner.

History

#5860, eff 7-1-94; ss by #6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.05 Record of Non-Adjudicative Proceedings {#sec-env-c-205.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.05}

(a) The record of a non-adjudicative proceeding in which an oral public hearing is not held shall comprise:

(1) The application or request, together with all supporting or supplemental information, filed by the applicant;

(2) All correspondence between the department and the applicant or between the department and any other interested person(s) regarding the application or request;

(3) A copy of the draft license, if one is required to be prepared and circulated for public comment by the departmental rules specific to the license; and

(4) Any other information relevant to the application or request that is considered by the department in reaching a decision.

(b) The record of a non-adjudicative proceeding for which an oral public hearing is held shall comprise:

(1) All information specified in (a), above;

(2) Copies of all notices of the oral public hearing that were published or otherwise distributed by the department;

(3) Any exhibits or written testimony received pursuant to Env-C 205.07;

(4) For rulemaking proceedings, a copy of all documents prepared and filed under RSA 541-A; and

(5) Subject to (c), below, a tape recording or other method that provides a verbatim record of the oral public hearing or notes of the hearing prepared by the presiding officer or designee.

(c) If no member of the public attends an oral public hearing for which notice in accordance with Env-C 205.04 was given, the record of the oral hearing shall consist of a memo from the presiding officer stating that no member of the public was present.

(d) The record of a non-adjudicative proceeding shall be available for inspection by any person in accordance with Env-C 210.05.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.06 Opening an Oral Public Hearing {#sec-env-c-205.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.06}

(a) The presiding officer shall open an oral public hearing by describing in general terms the purpose of the hearing and procedures governing its conduct.

(b) If the purpose of the hearing is to provide information to the public, the presiding officer, department staff, or such other person as the presiding officer designates shall then present such information.

(c) After the opening statement and presentation of information, if any, the presiding officer shall open the hearing to receive comments and questions from the persons attending the hearing.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.07 Testimony at an Oral Public Hearing {#sec-env-c-205.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.07}

(a) Any individual wishing to submit exhibits or written testimony at an oral public hearing shall do so to the presiding officer, provided the individual signs and dates such testimony or exhibit(s).

(b) Any individual wishing to testify at an oral public hearing shall submit his/her name, address, and whom s/he represents, if anyone, in writing to the presiding officer. The presiding officer shall call each individual to present his/her testimony. The presiding officer shall encourage individuals who plan to testify orally to place their testimony in writing and to submit such written testimony to the presiding officer prior to the close of the record.

(c) At the conclusion of testimony of each individual, the individual shall remain available to answer questions from the presiding officer, who shall only ask such questions as are necessary to clarify the testimony given.

(d) The presiding officer shall terminate any comments, questions, or discussions that are not relevant to the subject of the hearing.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.08 Closing the Hearing and the Record {#sec-env-c-205.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.08}

(a) The presiding officer shall close the oral public hearing when s/he determines that no one has further questions or comments that are relevant to the subject of the hearing.

(b) At an oral public hearing other than a rulemaking hearing, if additional time is requested to submit written testimony as specified in Env-C 205.07(b) or supplemental information which the presiding officer determines to be relevant to the subject of the hearing, the presiding officer shall designate a specific time period for the record to remain open to receive such information.

(c) For rulemaking hearings, the record shall remain open until the date specified in the notice published pursuant to Env-C 205.04(a).

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 205.09 Continuances {#sec-env-c-205.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 205.09}

(a) Hearings on proposed rules shall be continued only in accordance with RSA 541-A.

(b) At any oral public hearing other than a hearing on proposed rules, if anyone requests a continuance and the presiding officer determines that the public will be best served by continuing the hearing and that any prejudice caused to any person as a result of the continuance is outweighed by the benefit to the public of granting the continuance, the presiding officer shall order that the hearing be continued to a later date, time, and place.

(c) If such later date, time, and place are known at the time of the hearing that is being continued, the presiding officer shall state the date, time, and place on the record.

(d) If such later date, time, and place are not known at the time of the hearing that is being continued, the presiding officer shall state how notice will be given of the date, time, and place of the continued hearing.

History

#8851-A, eff 3-25-07

Part Env-C 206 Motions for Reconsideration

N.H. Code Admin. R. Ann. Env-C 206.01 Purpose {#sec-env-c-206.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 206.01}

The rules in this part are intended to supplement any statutory provisions, such as RSA 541, that require or allow a person to request reconsideration of a decision of the department prior to appealing the decision. These rules do not create the right to request reconsideration of a decision where it does not otherwise exist under law.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 206.02 Applicability {#sec-env-c-206.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 206.02}

The rules in this part shall apply whenever any person has a right under applicable law to request a reconsideration of a decision prior to filing an appeal of the decision with the applicable court or council having appellate jurisdiction.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 206.03 Time for Filing {#sec-env-c-206.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 206.03}

Any motion for reconsideration shall be filed no later than 30 days after the date the decision that is the subject of the motion was issued.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 206.04 Filing {#sec-env-c-206.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 206.04}

(a) Any person wishing to request reconsideration of a department decision shall file the original and 2 copies of a motion for reconsideration at the following address:

Office of the Commissioner, Legal Unit

Department of Environmental Services

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

(b) For purposes of this section, a “department decision” means a decision that is signed by the commissioner, by the assistant commissioner on behalf of the commissioner, or by a division director, alone or in any combination.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 206.05 Format and Content of Motion {#sec-env-c-206.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 206.05}

The person filing a motion for reconsideration shall provide the following information:

(a) The exact legal name of each person requesting reconsideration and the mailing address of the person and, if available, a fax number and e-mail address for the person;

(b) If the person making the request is other than an individual, the name and daytime telephone number of the individual who can be contacted regarding the motion and, if available, a fax number and e-mail address for that individual;

(d) A clear and concise statement of the facts upon which the department is expected to rely in granting relief;

(e) A clear and concise statement of the specific relief or ruling requested;

(f) A copy of the decision that is the subject of the motion; and

(g) Such other information as the party filing the motion deems pertinent and relevant, including sworn written testimony and other evidence that was not available for the hearing.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

Part Env-C 207 Rulemaking Petitions

N.H. Code Admin. R. Ann. Env-C 207.01 Applicability {#sec-env-c-207.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 207.01}

The rules in this part shall apply to any petition submitted to the department pursuant to RSA 541-A:4.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 207.02 Filing {#sec-env-c-207.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 207.02}

Any person wishing to file a petition to adopt, amend, or repeal a department rule shall file the original and one copy of the petition with the commissioner at the following address:

Office of the Commissioner, Legal Unit

Department of Environmental Services

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 207.03 Format and Content of Petition {#sec-env-c-207.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 207.03}

The person filing a petition to adopt, amend, or repeal a department rule shall provide the following information:

(a) The exact legal name of each person requesting the adoption, amendment, or repeal of the rule, with a mailing address of the person and, if available, a fax number and e-mail address for the person;

(d) If the petition is to adopt a rule:

(1) The chapter, part, and section, by alphanumeric code, where the person proposes the rule to be inserted; and

(2) The language that the person wants to have adopted as a rule;

(e) If the petition is to amend a rule:

(1) The specific rule, by alphanumeric code, that is the subject of the petition; and

(2) The language that the person wants to have adopted as a rule;

(f) If the petition is to repeal a rule, the specific rule, by alphanumeric code, that is the subject of the petition;

(g) A clear and concise statement of why the petitioner wants the department to undertake the action requested; and

(h) Such other information as the person filing the petition deems pertinent and relevant, including sworn written testimony.

History

#6960, eff 3-25-99; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 207.04 Processing of Rulemaking Petitions {#sec-env-c-207.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 207.04}

(a) Upon receipt of a petition to adopt, amend, or repeal a rule, the commissioner shall proceed in accordance with RSA 541-A:4.

(b) The commissioner shall grant the petition and initiate a rulemaking proceeding in accordance with RSA 541-A:4 if the commissioner determines that the department has authority to take the proposed action and the proposed action is:

(1) Consistent with state and federal law and policy; and

(2) Necessary to the efficient and effective implementation of the rules that are the subject of the action or other programs implemented by the department.

History

#6960, eff 3-25-99; ss by; ss by #8851-A, eff 3-25-07

Part Env-C 208 Claims of Confidentiality

N.H. Code Admin. R. Ann. Env-C 208.01 Purpose {#sec-env-c-208.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.01}

The purpose of this part is to establish the procedures by which a person who submits information to the department can protect confidential information.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 208.02 Applicability {#sec-env-c-208.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.02}

This part shall apply to any person submitting information to the department who wishes to assert a claim of confidentiality for some or all of the information being submitted.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 208.03 Definition {#sec-env-c-208.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.03}

(a) “Confidential business information (CBI)” means information that is exempt from disclosure under RSA 91-A:5, IV or any statute implemented by the department, including but not limited to any formula, pattern, device, or compilation of information used in the business of the person making the claim of confidentiality, that the person protects from disclosure and that gives the person an advantage over competitors who do not know of or use it. The term includes trade secrets as defined in RSA 350-B:1, IV.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 208.04 Initial Claim of Confidentiality {#sec-env-c-208.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.04}

(a) Any person who wishes to make a claim that information being submitted to the department is CBI shall assert that claim at the time the information is initially submitted to the department.

(b) Subject to (c), below, the person shall assert the claim by stamping or otherwise marking each page of information asserted to contain CBI with the notation “confidential” or “confidential business information”.

(c) If only part of the information on a page is CBI, the claimant shall assert a CBI claim only as to that information by identifying the specific information to which the claim applies.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 208.05 Department Handling of Information Identified as CBI {#sec-env-c-208.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.05}

(a) The department shall review the information for which a CBI claim is made.

(b) If a CBI claim is made for any information that falls within any category identified in Env-C 208.06, the department shall:

(1) Not treat the information as confidential; and

(2) Send written notice to the person submitting the information of its determination.

(c) If the department receives information from another agency of the state or federal government that has been designated as CBI, the department shall exercise the same degree of confidentiality for the information as is exercised by the sending agency to the extent authorized by New Hampshire law.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 208.06 Non-Confidential Information {#sec-env-c-208.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.06}

No CBI claim shall be made for the following:

(a) Any information for which no CBI claim was made at the time of the initial submission;

(b) Comments submitted by any person during the public comment period of any non-adjudicative administrative proceeding of the department;

(d) Information that is known by the department to be in the public domain, in which case the department shall identify the public domain source of the information in the notice sent pursuant to Env-C 208.05(b)(2);

(e) Information contained in any permit issued by the department under any statute it implements;

(f) Information that is necessary to determine whether a violation of any statute implemented by the department or of any rule adopted or license or order issued pursuant to such statutes has occurred, including but not limited to data on emissions and discharges;

(g) Information that supports a finding that a violation of any statute implemented by the department or of any rule adopted or license or order issued pursuant to such statutes has occurred, including but not limited to data on emissions and discharges;

(h) A certificate of compliance as required by RSA 149-M:36; or

(i) Information that is exempted from claims of confidentiality pursuant to any statute implemented by the department or rules adopted pursuant to such statutes that establish criteria or exceptions for claims of confidentiality.

History

#6960, eff 3-25-99; ss by #8851-B, eff 3-25-07; ss by #10802-A, eff 3-24-15 (from Env-C 208.05); ss by #13107, eff 9-25-20

N.H. Code Admin. R. Ann. Env-C 208.07 Release or Other Use of Information {#sec-env-c-208.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 208.07}

(a) When the department receives a request for the release of information that has been designated by the person who submitted the information as CBI and that has not been determined to be non-confidential pursuant to Env-C 208.05(b), the department shall notify, in writing:

(1) The person requesting the information that the information is subject to a claim of confidentiality but will be released on a specified date unless an objection is received from the person who submitted the information; and

(2) The person asserting the claim of confidentiality that the information will be released pursuant to the request on a specific date unless the person submits a written objection with the department prior to the specified release date that clearly explains all of the reasons why the person believes the information should not be released.

(b) The release date specified in the notices provided pursuant to (a), above, shall be no sooner than 10 business days after the date of issuance of the notice.

(1) Provide a copy of the objection to the person(s) who requested the information; and

(2) Request assistance from the New Hampshire department of justice to resolve the dispute.

(d) If the person who submitted the information does not file a written objection to the release with the department prior to the specified release date, the department shall release the information to the person who requested it and thereafter the information shall no longer be treated as confidential by the department.

(e) The department shall have the use of any information submitted to it, regardless of whether a CBI claim has been asserted with respect to the information, for any purpose whatsoever, including:

(1) Using the information for compiling surveys, statistics, or studies, so long as such use does not compromise the confidentiality of any information that is CBI; or

(2) Ensuring compliance with applicable requirements.

History

#10802-A, eff 3-24-15 (from Env-C 208.06)

Part Env-C 209 License Actions; Conditions; Expediting Review

N.H. Code Admin. R. Ann. Env-C 209.01 Definitions {#sec-env-c-209.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.01}

For purposes of this part, the following definitions shall apply:

(a) “Applicable requirements” means all requirements that apply to a site, facility, or activity imposed by:

(1) Any state statutory provisions for which the department is primarily responsible for implementation or enforcement;

(2) Any rule adopted by the commissioner pursuant to statutory rulemaking authority;

(3) Any license issued by the department pursuant to statutory authority;

(4) Any federal statutory provisions or regulations, for which the United States Environmental Protection Agency (“US EPA”) is primarily responsible for implementation or enforcement, which are analogous to state statutes or rules implemented or enforced by the department; or

(5) Any license issued by the US EPA which is analogous to a state license issued by the department.

(b) “Chronic non-complier” means a person who:

(1) Has committed, within 3 years of the date of application or of the violation(s) for which a license action has been initiated, as applicable:

a. More than 2 violations that remain uncorrected after the department or the US EPA has notified the respondent, in writing, of the violations and the need to correct them, which demonstrates that the respondent is unable or unwilling to comply with applicable requirements; or

b. More than 3 violations that are corrected by the respondent after the department or the US EPA has notified the respondent, in writing, of the violations and the need to correct them, but recur with a frequency that demonstrates that the respondent is unable or unwilling to maintain compliance with applicable requirements; or

(2) Has been the subject, within 3 years of the date of the application or of the violation(s) for which a license action has been initiated, as applicable, of 2 or more administrative or civil enforcement actions or one criminal enforcement action that have not been overturned on appeal for violations of any applicable requirements pertaining to any of the respondent’s activities.

(c) “Enforcement action” means a proceeding initiated by or at the request of the department or the US EPA against a person who is believed to have violated any applicable requirements, which is intended to cause the person to comply with applicable requirements or to impose a monetary penalty, or both, or to incarcerate the person.

(d) “License holder” means the person to whom the department has issued a license.

(e) “Person” means “person” as defined by the statute or rules applicable to the application or license at issue.

History

#6960, eff 3-25-99; ss by #7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.02 Grounds for Denying a License Application {#sec-env-c-209.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.02}

In addition to such grounds for denying a license application as are identified in the rules that are specific to the license for which an application was filed, the following shall constitute good cause to deny a license application:

(a) The applicant owes any fees to the department, unless the fees are being paid in accordance with a payment schedule and the applicant is current with all payments;

(b) The applicant owes any administrative fines to the department, unless the fines are being paid in accordance with a payment schedule and the applicant is current with all payments;

(c) The applicant has failed to comply with any administrative order issued by the department, unless the applicant is complying in accordance with a compliance schedule and is current with all items;

(d) The applicant owes any civil or criminal penalties imposed as a result of a judicial action taken to enforce any statute or rule implemented by the department, unless the penalties are being paid in accordance with a payment schedule and the applicant is current with all payments;

(e) The applicant has failed to comply with any civil or criminal restoration or restitution order imposed as a result of a judicial action taken to enforce any statute or rule implemented by the department, unless the applicant is complying in accordance with a compliance schedule and is current with all items; and

(f) The applicant is a chronic non-complier.

History

#6960, eff 3-25-99; amd by #7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.03 Grounds for Suspension, Revocation, or Refusal to Renew {#sec-env-c-209.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.03}

In addition to such grounds for suspending, revoking, or refusing to renew a license as are identified in the rules that are specific to the license at issue, the following shall constitute good cause to suspend, revoke, or refuse to renew a license issued by the department:

(a) The license holder owes any fees to the department, unless the fees are being paid in accordance with a payment schedule and the license holder is current with all payments;

(b) The license holder owes any administrative fines to the department, unless the fines are being paid in accordance with a payment schedule and the license holder is current with all payments;

(c) The license holder has failed to comply with any administrative order issued by the department, unless the license holder is complying in accordance with a compliance schedule and is current with all items;

(d) The license holder owes any civil or criminal penalties imposed as a result of a judicial action taken to enforce any statute or rule implemented by the department, unless the penalties are being paid in accordance with a payment schedule and the license holder is current with all payments;

(e) The license holder has failed to comply with any civil or criminal restoration or restitution order imposed as a result of a judicial action taken to enforce any statute or rule implemented by the department, unless the license holder is complying in accordance with a compliance schedule and is current with all items; and

(f) The license holder is a chronic non-complier.

History

#6960, eff 3-25-99; amd by #7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.04 Relevance of Prior Violations {#sec-env-c-209.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.04}

(a) The department shall not base a decision to suspend, revoke, or refuse to renew a license or to deny a license application on prior violation(s) not documented by one or more enforcement actions that arose in a program other than the program to which the license application or license pertains unless the prior violations(s) can reasonably be found to be relevant to the license or application under consideration.

(b) Any prior violation(s) arising in the same program as the license or application under consideration shall be deemed to be relevant to the pending license action.

History

#6960, eff 3-25-99; ss by #7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.05 Determination to Deny a License Application or to Suspend, Revoke, or Refuse to Renew a License {#sec-env-c-209.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.05}

(a) The determination of whether to deny a license application or to suspend, revoke, or refuse to renew a license shall be made in accordance with the procedural rules specific to the type of license at issue.

(b) If the respondent has not already had the opportunity to contest, through an adjudicative proceeding, the prior violation(s) on which the department proposes to base a decision to deny a license application or to suspend, revoke, or refuse to renew a license, the respondent shall have the opportunity to contest such prior violation(s) through an adjudicative proceeding prior to a final decision being made.

(c) In any proceeding under (b) above, the division shall bear the burden of proof on any alleged prior violation(s) not documented by one or more enforcement actions in the same manner as would have been true if an adjudicative proceeding had been initiated at the time of discovery of the prior violation(s).

History

#7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.06 License Conditions {#sec-env-c-209.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.06}

(a) The department shall include conditions in a license whenever it determines that such conditions are necessary to:

(1) Provide greater assurance that the license holder will comply with applicable requirements; or

(2) Minimize the potential for harm to public health or the environment from any violations of applicable requirements.

(b) Any conditions so added shall relate directly to the site, facility, or activity for which the license is issued and shall be no more than reasonably necessary to achieve the criteria in (a), above.

(1) The nature and scope of the license being issued; and

(2) The compliance history of the applicant, including whether the applicant is a chronic non-complier.

(d) The license holder may appeal any conditions included in a license pursuant to this section in accordance with existing appeal routes established under the statute which authorizes the department to issue the license to which the conditions were attached.

History

#7562, eff 9-26-01; ss by #8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 209.07 Requests to Expedite Review of an Application {#sec-env-c-209.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 209.07}

(a) In a program for which the governing statute or rule does not explicitly provide for an optional expedited process, an applicant who wishes to request an expedited review of an application shall submit the following in writing to the department:

(1) All information necessary to identify the application for which the request is being submitted;

(2) A request to expedite the department’s review of the application that includes:

a. The reason(s) for the request;

b. The status of any other federal, state, or local approvals also required for the project and, if such approvals have already been issued, the issuing body, approval number, and date of issuance; and

c. A proposed deadline for the department to issue a decision and the reason(s) for the deadline selected; and

(3) Certification that:

a. The application is complete and contains the current plans for the project, if plans are required by the applicable rules;

b. All information submitted with the application is true and not misleading;

c. The applicant understands that the submittal of false or misleading information, or both:

Constitutes grounds to suspend or revoke any license issued based on the information; and
Subjects the applicant to penalties for falsification in official matters, currently in RSA 641; and

d. The applicant will respond to the department’s requests for more information or comments, or both, within 10 calendar days after the date of the request.

(b) If a request for an expedited review of an application is received under (a), above, the commissioner, in consultation with the director of the division having subject matter authority over the application and staff of the program in which the application is pending shall, in order to make a determination under (c), below, consider the basis for the request and the number and complexity of other applications already being processed or awaiting review by the program.

(1) The application for which the request has been submitted is complete and includes the most recent plan(s) for the project, if plans are required;

(2) Good cause as described in (d), below, exists to grant the request;

(3) All applicable statutory and rule-based deadlines will still be met for all other pending applications in the same program; and

(4) The applicant has committed to responding to the department’s comments within 10 calendar days after the date of the request.

(d) The following shall constitute good cause to expedite a review:

(1) Expedited review is necessary to abate a substantial and imminent threat to public health or safety; or

(2) Expedited review is necessary to facilitate:

a. Essential and substantial economic development in an area of the state that is in need of such development that would not otherwise occur without review being expedited;

b. An important public interest and fundamental public responsibility, including but not limited to those relating to public education and public health, where project completion is time-sensitive, for example completing a school building prior to the beginning of a new school year; or

c. The receipt of funding in the form of grants or low-interest loans for projects that will benefit low-income segments of society, such as constructing workforce or senior housing.

(e) To expedite the review of the application, the commissioner shall direct the application that is the subject of the request to be reviewed:

(1) Ahead of other pending applications; or

(2) By other staff of the department, provided that no application shall be reviewed by any individual who does not have the qualifications needed for the position held by the individual(s) who normally would review the application.

(f) The department shall notify the requestor of the commissioner’s decision on the request to expedite review of the application in writing within 5 working days of receipt of the request. If the request is granted, the notice shall identify the anticipated deadlines for processing the application and issuing a decision.

(g) If review is expedited, then:

(1) Accommodation shall be made for receipt of comments required or allowed to be submitted by law, such as under RSA 482-A:11 or RSA 541-A:39; and

(2) The application shall be granted or denied as specified in the applicable rules.

History

#12902-B, eff 10-22-19

Part Env-C 210 Record Retention and Review

N.H. Code Admin. R. Ann. Env-C 210.01 Purpose {#sec-env-c-210.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.01}

The rules in this part are intended to clarify the department’s policies on retaining records and specify the procedures by which the public can request to review or receive copies of such records.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 210.02 Applicability {#sec-env-c-210.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.02}

Env-C 210 shall apply to all records maintained by the department.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 210.03 Definitions {#sec-env-c-210.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.03}

(a) “Electronic record” means “electronic record” as defined in RSA 294-E:2, VII, namely “a record created, generated, sent, communicated, received, or stored by electronic means.”

(b) “Electronic signature” means “electronic signature” as defined in RSA 294-E:2, VIII, namely “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”

(c) “Record” means “record” as defined in RSA 294-E:2, XIII, namely “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.”

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 210.04 Retention of Department Records {#sec-env-c-210.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.04}

(a) The department shall retain an electronic record received from any individual or entity outside the department in the record’s original electronic format or in such other electronic format as is compatible with technology within the department’s possession.

(b) If necessary in order to conserve physical storage space, the department shall convert non-electronic records to electronic format and thereafter retain the electronic format. Any record so converted shall not be required to be retained in its non-electronic format.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 210.05 Review of Department Records {#sec-env-c-210.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.05}

(a) Any person who wishes to review department records shall submit a written request that contains the information specified in (b), below, to:

Department of Environmental Services

Public Information Center

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

(b) The request filed pursuant to (a), above, shall:

(1) Specify the name, mailing address, and daytime telephone number of the individual making the request and, if available, a fax number and e-mail address;

(2) Identify the record(s) the person wishes to review with as much specificity as possible, including as applicable:

a. The docket number assigned to an adjudicative proceeding;

b. The file number or permit number assigned to an application proceeding;

c. The complete address of the property that is the subject of the records requested; and

d. If a specific division is believed to have the requested record(s), the name of the division.

(c) Requested records shall be made available during normal business hours at the department’s offices in Concord or in such field office as is the normal repository for the requested record.

History

#8851-A, eff 3-25-07

N.H. Code Admin. R. Ann. Env-C 210.06 Oral Hearing Records {#sec-env-c-210.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 210.06}

(a) Copies of the recording of an oral adjudicative hearing or an oral public hearing shall be provided to any person upon request and payment of the costs of the tape(s), or at no charge if the person supplies enough blank tapes to copy the hearing tape(s).

(b) If any person desires a transcript of the recording of an oral adjudicative hearing or an oral public hearing, the department shall prepare or cause to be prepared a transcript provided the actual cost of the transcription is paid by the person(s) requesting the transcript. If the department hires an outside person to prepare the transcript, the person requesting the transcript shall be billed directly by and shall directly pay the person preparing the transcript.

History

#8851-A, eff 3-25-07

Part Env-C 211 REQUESTS UNDER RSA 72:12-a

N.H. Code Admin. R. Ann. Env-C 211.01 Purpose {#sec-env-c-211.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 211.01}

The rules in this part are intended to clarify the procedures by which a person can apply to the department for a determination under RSA 72:12-a.

History

#8851-B, eff 3-25-07; ss by #10802-B, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 211.02 Definition {#sec-env-c-211.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 211.02}

(a) “Installation” means the treatment facility, device, appliance, or installation that is the subject of the application.

History

#8851-B, eff 3-25-07; ss by #10802-B, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 211.03 Application Filing {#sec-env-c-211.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 211.03}

(a) The applicant shall submit a written application that contains the information specified in Env-C 211.04 to:

DES Legal Unit

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

(b) As required by RSA 72:12-a, II, the applicant shall provide a copy of the complete application to the taxing authority of each municipality in which the installation is located.

(c) The applicant shall file the request at least 90 days in advance of the first day of the first tax year for which the exemption is being requested.

History

#8851-B, eff 3-25-07; ss by #10802-B, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 211.04 Contents of Request {#sec-env-c-211.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 211.04}

The application filed pursuant to Env-C 211.03 shall include:

(a) The name, mailing address, and daytime telephone number of the applicant;

(b) If the applicant is other than an individual, the name, mailing address, daytime telephone number, and email address and fax number, if any, of an individual who can be contacted regarding the application; and

(1) A brief description of the installation;

(2) A simplified process flow diagram for the installation;

(3) An explanation of how the installation operates to reduce, control, or eliminate a source of air or water pollution;

(4) Whether the installation is wholly or only partially for the purpose of reducing, controlling, or eliminating any source of air or water pollution; and

(5) Any other information believed by the applicant to be relevant to the application.

History

#8851-B, eff 3-25-07; ss by #10802-B, eff 3-24-15

N.H. Code Admin. R. Ann. Env-C 211.05 Department Review and Decision {#sec-env-c-211.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 211.05}

(a) The department shall review each request received as provided in RSA 72:12-a, III.

(b) The department shall:

(1) Issue a written decision on each request in accordance with RSA 72:12-a, IV; and

(2) Send a copy of the decision to the applicant and to the taxing authority in the municipality where the installation is located.

(c) The department shall issue the decision prior to the first day of the first tax year for which the exemption is being requested if the application is received at least 90 days in advance of such date.

(d) The decision issued pursuant to (b), above, shall state the reasons for the decision.

History

#8851-B, eff 3-25-07; ss by #10802-B, eff 3-24-15

Part Env-C 212 Declaratory Rulings

N.H. Code Admin. R. Ann. Env-C 212.01 Purpose and Applicability {#sec-env-c-212.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.01}

(a) The purpose of the rules in this part shall be to establish a mechanism whereby a person who is uncertain of the applicability of a particular statute implemented by the department or rule adopted by the department may request a decision in advance of taking an action that might be subject to such statute or rule.

(b) These rules shall not be used to circumvent other established methods of adjudication, such as an appeal to a council created under RSA 21-O, in cases where the department has already made a determination, such as by issuing or denying a permit or by initiating an enforcement action.

History

#9133, eff 4-19-08

N.H. Code Admin. R. Ann. Env-C 212.02 Filing {#sec-env-c-212.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.02}

Any person seeking a declaratory ruling from the department shall file the original and one copy of a written petition for declaratory ruling as specified in Env-C 212.02 at the following address:

Department of Environmental Services

Legal Unit

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

History

#8851-A, eff 3-25-07 (from Env-C 212.01)

N.H. Code Admin. R. Ann. Env-C 212.03 Form and Content of Petition {#sec-env-c-212.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.03}

A petition for a declaratory ruling shall include the following:

(a) The name, mailing address, and daytime telephone number of each petitioner and, if the petitioner is other than an individual, the name, mailing address, and daytime telephone number of an individual who can be contacted regarding the petition and, if available, a fax number and e-mail address for that individual;

(b) A precise and complete citation to the statute or administrative rule, or identifying information concerning the order, for which the petitioner seeks a ruling;

(c) A clear and concise statement explaining the background, facts, and considerations which led to the petition, in order for the department to understand the nature and specific reasons for the petition and why the ruling is being requested;

(d) If the petition requests a ruling that will affect specifically-identified property owned by someone other than the petitioner, certification that the petition has been served in accordance with Env-C 212.04(c) and (d); and

(e) Such other information as the person filing the petition deems pertinent and relevant, including exhibits, maps, illustrations, and sworn affidavits.

History

#8851-A, eff 3-25-07 (from Env-C 212.02)

N.H. Code Admin. R. Ann. Env-C 212.04 Signature; Service {#sec-env-c-212.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.04}

(a) Every petition for declaratory ruling shall be signed by the individual(s) submitting the petition or, if the petition is filed on behalf of an entity, by a duly-authorized representative of the entity.

(b) The signature(s) shall constitute a certification that:

(1) The signer has read the document;

(2) The signer is authorized to file it;

(3) To the best of the signer’s knowledge, information, and belief, there are good grounds to support it; and

(4) The document has not been filed for purposes of delay or harassment.

(c) Any person who files a petition requesting a ruling that will affect known and specifically-identified interests of another, such as property owned by someone other than the petitioner, shall serve a copy of the petition on such other person and any other person known by the petitioner to have a substantial interest in the matter.

(d) Service as required by (c), above, shall be made on or before the date of filing of the petition with the department by any method specified in Env-C 204.08(f).

History

#8851-A, eff 3-25-07 (from Env-C 212.03)

N.H. Code Admin. R. Ann. Env-C 212.05 Processing of Petitions for Declaratory Rulings {#sec-env-c-212.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.05}

(a) Upon receipt of a petition requesting a ruling that will affect known and specifically-identified interests of another, the department shall notify the person(s) served by the petitioner of the date by which a written response to the petition may be filed, which date shall not be less than 25 days from the date of the notice.

(b) Within 25 days of receipt of a petition for declaratory ruling, the department shall review the petition to determine:

(1) Whether additional information or explanation is needed; and

(2) Whether the complexity of the petition, including but not limited to the issue in question and the legal implications thereof, will cause the department to seek assistance from the department of justice.

(c) The department shall inform the petitioner in writing of the results of its review under (b), above. If additional information or explanation is needed, the department shall identify the needed information or explanation and shall establish a deadline for the petitioner to provide the information, which shall be no sooner than 25 days after the date of the notice. If the department will be seeking assistance from the department of justice, the department shall inform the petitioner of the anticipated amount of time that will be needed to obtain such assistance.

History

#8851-A, eff 3-25-07 (from Env-C 212.04)

N.H. Code Admin. R. Ann. Env-C 212.06 Decision on Petitions for Declaratory Rulings {#sec-env-c-212.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 212.06}

(a) The department shall issue its decision on the petition in writing.

(b) If assistance from the department of justice is not required, the department shall issue a response to the person filing the petition for declaratory ruling within 90 days following:

(1) Receipt of a complete petition, if no response is requested pursuant to Env-C 212.05(a); or

(2) The deadline for receipt of a response, if a response is requested pursuant to Env-C 212.05(a).

(c) If assistance from the department of justice is required, the department shall issue a written response to the person filing the petition for declaratory ruling within 30 days following receipt of such assistance from the department of justice.

(d) Declaratory rulings issued by the department shall be filed with the director of legislative services in accordance with RSA 541-A:16, II(b).

History

#8851-A, eff 3-25-07 (from Env-C 212.05)

Part Env-C 213 Waiver of Procurement Provisions

N.H. Code Admin. R. Ann. Env-C 213.01 Purpose {#sec-env-c-213.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 213.01}

The purpose of this part is to establish the criteria and procedures for waiving the requirements of RSA 21-G:37, I-IV, as contemplated by RSA 21-G:37, V.

History

#12386, eff 9-22-17

N.H. Code Admin. R. Ann. Env-C 213.02 Applicability {#sec-env-c-213.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 213.02}

Unless otherwise specified, Env-C 213 shall apply to the procurement of goods and services by the New Hampshire department of environmental services through a request for bid (RFB), request for application (RFA), request for proposal (RFP), or similar invitation.

History

#12386, eff 9-22-17

N.H. Code Admin. R. Ann. Env-C 213.03 Definitions {#sec-env-c-213.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 213.03}

(a) “Commissioner” means the commissioner of the department of environmental services or designee.

(b) “Department” means the New Hampshire department of environmental services.

(c) “Emergency situation” means a natural, technological, or human made situation, condition, or set of circumstances, that has caused or is determined by the commissioner to be likely to cause degradation of the environment or threaten public health or safety and:

(1) Impedes or diminishes the department’s ability to provide materials or services necessary to protect public health or safety or the environment from the effects of such situation, condition, or set of circumstances;

(2) Inhibits or interrupts the continuity of services provided by the department; or

(3) Prevents the department from complying with any state or federal statute rule or regulation.

(d) “Request for application (RFA)” means “request for application” as defined in RSA 21-G:36, III, as reprinted in Appendix B.

(e) “Request for bid (RFB)” means “request for bid” as defined in RSA 21-G:36, IV, as reprinted in Appendix B.

(f) “Request for proposal (RFP)” means “request for proposal” as defined in RSA 21-G:36, V, as reprinted in Appendix B.

History

#12386, eff 9-22-17

N.H. Code Admin. R. Ann. Env-C 213.04 Waiver of Requirements {#sec-env-c-213.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 213.04}

(a) The commissioner shall waive any or all of RSA 21-G:37, II - IV for any RFA, RFB, RFP, or similar invitation if the waiver is necessary to:

(1) Prevent the loss of federal or other funds subject to recapture; or

(2) Prevent or mitigate an emergency situation as defined in Env-C 213.03(c).

(b) The department shall post the information required by RSA 21-G:37, II and III as soon as practicable after the emergency situation that gave rise to the need for the waiver has been mitigated.

History

#12386, eff 9-22-17

Part Env-C 214 Cross-Media Electronic Reporting Rule (cromerr) Compliance

N.H. Code Admin. R. Ann. Env-C 214.01 Purpose {#sec-env-c-214.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.01}

The purpose of these rules is to establish requirements to implement the Cross-Media Electronic Reporting Rule (CROMERR), 40 CFR Part 3, 2018 edition, promulgated by the United States Environmental Protection Agency (EPA).

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.02 Applicability; Exclusions {#sec-env-c-214.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.02}

(a) These rules shall apply to any person required or allowed to submit documents electronically to the department, whether for use by the department or EPA, to satisfy any requirement of 40 CFR for an authorized NH program.

(b) These rules shall not apply to documents submitted via fax or via magnetic or optical media such as diskette, compact disc, digital video disc, or tape.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.03 Federal Definitions {#sec-env-c-214.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.03}

For purposes of this part, the following terms shall be as defined in 40 CFR §3.3, reprinted in Appendix B:

(a) “Authorized program”;

(b) “Copy of record”;

(d) “Electronic document receiving system”;

(e) “Electronic signature”;

(f) “Electronic signature agreement”;

(g) “Electronic signature device”;

(h) “Federal program”;

(i) “Federal reporting requirement”;

(j) “Handwritten signature”;

(k) “Subscriber agreement”;

(l) “Transmit”; and

(m) “Valid electronic signature”.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.04 Other Definitions {#sec-env-c-214.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.04}

For purposes of this part, the following definitions also shall apply:

(a) “Access information” means the information required for an individual to use an electronic document receiving system, namely the individual’s user name, password, and additional identifier as described in Env-C 214.05(d)(2), or any combination thereof;

(b) “Authorized NH program” means an authorized program implemented by the department;

(c) “Authorized official” means an individual who has been duly authorized by a reporter to legally obligate the reporter by signing a subscriber agreement to designate a signatory;

(d) “Certifying officer” means the official of a reporter who has the authority to designate one or more authorized officials;

(e) “Document” means the content, in human readable format, of any electronic document. The term includes but is not limited to reports and monitoring data;

(f) “NH electronic document receiving system (NHEDRS)” means any electronic document receiving system through which the department receives electronic documents required or allowed by any authorized NH program;

(g) “NHEDRS contact” means the department employee who has been designated as the department’s contact for a specific NHEDRS;

(h) “Person” means any individual or legal entity, whether private or public;

(i) “Reporter” means a person that is required to submit any document to an authorized NH program;

(j) “Signatory” means an individual who has been duly authorized by a reporter, acting through an authorized official, to transmit electronic documents that are required to be signed to the department on behalf of the reporter using an NHEDRS; and

(k) “Submitter” means an individual who transmits electronic documents that are not required to be signed to the department using an NHEDRS.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.05 Access to A NH Electronic Document Receiving System (NHEDRS) {#sec-env-c-214.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.05}

(a) Upon implementation of an EPA-approved NHEDRS, the department shall:

(1) Post an announcement on its web site; and

(2) Notify those persons the department believes will be most likely to use the NHEDRS.

(b) Any reporter that would like to use an NHEDRS to transmit electronic documents in lieu of submitting paper copies of documents required or allowed to be filed with the department for an authorized NH program shall:

(1) Complete a certificate of authority as described in Env-C 214.11 (certificate) for the authorized official and have the completed certificate executed by the certifying officer;

(2) Complete a subscriber agreement as described in Env-C 214.12 (agreement) for each signatory and have the completed agreement executed by the authorized official and the identified signatory;

(3) Provide a copy of the completed and executed certificate to the authorized official and a copy of the completed and executed agreement to the identified signatory; and

(4) Submit the complete, fully-executed certificate and agreement(s) by U.S. Postal Service mail, private delivery service, or other in-hand delivery to the department, to the attention of the authorized NH program to which the documents relate, at the following address:

NH Department of Environmental Services

Attn: [Specific authorized NH program]

29 Hazen Drive

P.O. Box 95

Concord, NH 03302-0095

(c) Upon receipt of complete, fully-executed certificate and agreement(s), the department shall accept the certificate and agreement(s) unless a rational basis exists to question the authenticity of the signatures on the certificate or agreement(s). If such a rational basis exists, the department shall undertake such actions as are needed to verify the identity of the authorized official and each signatory.

(d) Upon acceptance of a certificate and agreement(s), the department shall:

(1) Notify the authorized official and each signatory at the applicable email address provided on the certificate or agreement; and

(2) Issue a unique electronic signature device (ESD) to each signatory and direct each signatory to establish a unique, strong PIN/password in conjunction with another identifier such as a challenge question/answer or a verification code on a mobile device, that together with the PIN/password will be sufficient to prove the electronic signature has not been compromised.

(e) Upon receiving notification pursuant to (d)(1), above, the authorized official and each signatory shall retain a copy of the complete, executed certificate or agreement, as applicable, and not discard the copy for so long as he or she continues to act as an authorized official or signatory, as applicable.

(f) The department shall retain:

(1) The certificate for not less than 5 years after the department is notified or otherwise becomes aware that the authorized official is no longer authorized; and

(2) Each agreement for not less than 5 years after the associated ESD has been deactivated.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.06 Use of An NHEDRS {#sec-env-c-214.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.06}

(a) Once a reporter has filed a certificate of authority and at least one subscriber agreement and has a signatory who has received an ESD pursuant to Env-C 214.05(d)(2), the reporter shall submit all documents required or allowed to be filed with the department under an authorized NH program in the form of electronic documents transmitted to the NHEDRS by a submitter or signatory, subject to (e) and (f), below.

(b) The submitter or signatory shall have the opportunity to review each electronic document to be submitted, including any required certification statement(s), in a human-readable format prior to its transmittal to prevent the filing of any electronic document that is untrue, incomplete, or misleading.

(c) Transmittal of electronic documents to an NHEDRS shall constitute certification by the submitter or signatory who transmits the electronic documents that the signatory:

(1) Is the owner of the account used to perform the electronic submission and signature;

(2) Has the authority to submit the electronic document on behalf of the reporter;

(3) Acknowledges and agrees that providing the account credentials to sign the document being transmitted constitutes an electronic signature equivalent to the signatory’s written signature;

(4) Has reviewed the electronic form being submitted in its entirety in a human-readable format; and

(5) Affirms that the information contained within it is true, complete, and not misleading to the best of the submitter’s or signatory’s knowledge and belief.

(d) Transmittal of electronic documents to an NHEDRS shall cause the reporter and the submitter or signatory who transmits the electronic documents to be:

(1) Legally bound, obligated, and made responsible to the same extent as submitting a paper copy of the documents; and

(2) Subject to criminal penalties for falsification in official matters, currently established in NH RSA 641.

(e) If a reporter is unable to file a required document using the NHEDRS by the applicable deadline due to reasons beyond the control of the reporter, the authorized official may request the department to accept a paper document in lieu of the electronic document for that filing. The department shall accept the paper document if the reporter has demonstrated by a preponderance of the evidence that the reporter’s inability to use the NHEDRS was caused by circumstances beyond the reporter’s control, such as an unexpected interruption in the reporter’s internet service or the unexpected unavailability of the sole signatory or of all signatories.

(f) If a reporter determines that the reporter’s circumstances warrant discontinuing the use of the NHEDRS, the reporter shall:

(1) Notify the department of such discontinuance; and

(2) Submit all documents required or allowed to be submitted after the date of the notification as paper documents.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.07 Use of Electronic Signature Devices (ESDs) {#sec-env-c-214.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.07}

(a) The signatory to whom an ESD has been issued pursuant to Env-C 214.05(d)(2) shall:

(1) Read and understand this part prior to transmitting any electronic documents;

(2) Not allow anyone else to use the ESD or the signatory’s access information;

(3) Protect the ESD and the signatory’s access information from being compromised in any manner;

(4) Report to the NHEDRS contact within one business day of discovering any evidence that the ESD has been compromised; and

(5) Maintain the secrecy of the signatory’s access information, by:

a. Not divulging the access information to any other person;

b. Not delegating the responsibility to file electronic documents using the NHEDRS to anyone;

c. Not storing the access information in an unprotected location; and

d. Not allowing the access information to be written into computer scripts to achieve automated log-in.

(b) Proof that a particular ESD was used to create the electronic signature on an electronic document transmitted to the NHEDRS shall be sufficient to establish that the signatory to whom the ESD was issued used the ESD with the intent to sign and transmit the electronic document and was authorized by the reporter to do so.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.08 When Electronic Signatures Are Required {#sec-env-c-214.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.08}

(a) An electronic document to be transmitted using the NHEDRS shall bear a signatory’s valid electronic signature if the document in paper format would require the handwritten signature of a duly-authorized representative of the reporter prior to submittal.

(b) If a document in paper format would not require the handwritten signature of a duly-authorized representative of the reporter prior to submittal, no electronic signature shall be required to transmit the corresponding electronic document.

(c) For each electronic document received, the NHEDRS shall provide to the signatory, via email, a receipt that identifies the electronic document received and the date and time of receipt.

(d) If the signatory does not receive a receipt pursuant to (c), above, the signatory shall notify the NHEDRS contact of such non-receipt within 5 business days of transmitting the electronic document.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.09 Effect of Electronic Signature {#sec-env-c-214.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.09}

(a) The presence of an electronic signature on an electronic document submitted to an NHEDRS shall establish that the signatory intended to:

(1) Sign the electronic document; and

(2) Submit it to the department to fulfill the purpose of the electronic document.

(b) If an electronic document transmitted to an NHEDRS to satisfy a reporting requirement of an authorized NH program bears an electronic signature, the electronic signature shall legally bind, obligate, and make the reporter and the signatory responsible to the same extent as the submittal of a paper copy of the document bearing the signatory’s handwritten signature.

(c) If an applicable law or rule requires a handwritten signature on a document submitted to the department to satisfy a requirement of an authorized NH program, an electronic signature on an electronic document transmitted to the appropriate NHEDRS shall satisfy the requirement provided:

(1) The reporter has filed a certificate of authority and at least one subscriber agreement; and

(2) The department has issued an ESD to the identified signatory, as described in Env-C 214.05(d)(2).

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.10 Penalties and Other Remedies {#sec-env-c-214.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.10}

(a) A reporter or signatory shall be subject to any applicable administrative, civil, or criminal penalties or other remedies established in New Hampshire law if the reporter or signatory fails to comply with a reporting requirement by failing to comply with:

(1) This part;

(2) A certificate of authority or subscriber agreement; or

(3) Any other applicable reporting requirements.

(b) Nothing in this part or any other requirement of an authorized program shall limit the use of an electronic document, copy of record, or other information derived from an electronic document as evidence in an enforcement proceeding.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.11 Certificate of Authority {#sec-env-c-214.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.11}

(a) A reporter shall submit to the department a certificate of authority to identify one or more authorized officials if:

(1) The reporter has not previously used the specific NHEDRS to be used; or

(2) A new or additional authorized official is being designated.

(b) Each certificate of authority shall:

(1) Be in writing on the reporter’s official letterhead;

(2) Provide the information identified in (c), below, in the same format as the “Reporter Certificate of Authority for CROMERR Compliance” dated August 2019, NHDES-C-05-003; and

(3) Bear the handwritten signature of the certifying officer that has been notarized in accordance with RSA 456-B.

(1) The name, mailing address, and main telephone number including area code of the reporter;

(2) The name, title, daytime telephone number including area code, and email address of the certifying officer; and

(3) The name, title, daytime telephone number including area code, and email address of the authorized official.

(d) The certifying officer shall sign and date the certificate.

(e) The signature of the certifying officer required by (d), above, shall constitute certification that the certifying officer:

(1) Has been duly authorized by the reporter to designate an authorized official;

(2) Understands that the authorized official will have the authority to designate one or more signatories, who will be authorized to submit electronic documents required by authorized NH programs on behalf of the reporter to the NHEDRS in lieu of paper submissions;

(3) Understands and agrees that the reporter and the authorized official will be legally bound, obligated, and held responsible by the signatory’s use of the NHEDRS to the same extent as submitting a paper document bearing the authorized official’s handwritten signature;

(4) Understands and agrees that the NHEDRS will automatically reject any electronic document submitted without a valid electronic signature if such signature is required, and that such rejection means that the required document has not been filed and the reporter will be subject to whatever penalties might apply to the failure to file;

(5) Agrees to notify the NHEDRS contact that the authorized official is no longer authorized to represent the reporter within 10 business days of the authorization being revoked;

(6) Agrees to retain a copy of the fully executed certificate as long as the authorized official continues to represent the reporter; and

(7) Understands and agrees that transmitting an electronic document using the NHEDRS subjects the reporter and the authorized official to:

a. The same state or federal administrative, civil, criminal, or other penalties and remedies as apply to submitting incomplete, false, or misleading information in paper format;

b. Any applicable state or federal administrative, civil, criminal, or other penalties and remedies that apply to not complying with all requirements for using the NHEDRS; and

c. Criminal penalties for falsification in official matters, currently established in RSA 641.

History

#12880, eff 9-30-19

N.H. Code Admin. R. Ann. Env-C 214.12 Subscriber Agreement {#sec-env-c-214.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 214.12}

(a) A reporter shall submit to the department a subscriber agreement to identify one or more signatories if:

(1) The reporter has not previously used the specific NHEDRS to be used; or

(2) A new or additional signatory is being designated.

(b) Each subscriber agreement shall:

(1) Be in writing; and

(2) Bear the handwritten signatures of the authorized official and of the signatory that have been notarized in accordance with RSA 456-B.

(c) The reporter shall provide the following information on the “Signatory Subscriber Agreement For CROMERR Compliance” dated August 2019, NHDES-C-05-002:

(1) The name, mailing address, and main telephone number including area code of the reporter;

(2) The name, title, daytime telephone number including area code, and email address of the authorized official;

(3) The name of the regulated site or activity, if other than the name provided pursuant to (1), above;

(4) The location of the regulated site or activity, if other than the mailing address provided pursuant to (1), above; and

(5) The name, title, daytime telephone number including area code, and email address of the signatory.

(d) The authorized official and signatory shall each sign and date the subscriber agreement.

(e) The signature of the authorized official required by (d), above, shall constitute certification that the authorized official:

(1) Understands that the subscriber agreement allows the signatory to submit electronic documents required by authorized NH programs on behalf of the reporter to the NHEDRS in lieu of paper submissions;

(2) Has read and understands the rules in Env-C 214 relative to transmitting electronic documents for CROMERR compliance;

(3) Affirms the individual identified as signatory is duly authorized to submit electronic documents on behalf of the reporter using the NHEDRS;

(4) Understands and agrees that the reporter and the authorized official will be legally bound, obligated, and held responsible by the signatory’s use of the NHEDRS to the same extent as submitting a paper document bearing the authorized official’s handwritten signature;

(5) Understands that the authorized official will have the opportunity to review each electronic document to be submitted, including any required certification statements, in a human-readable format and to prevent the filing of any electronic document that is untrue, incomplete, or misleading;

(6) Understands that the NHEDRS will automatically reject any electronic document submitted without a valid electronic signature if such signature is required, and that such rejection means that the required document has not been filed and the reporter will be subject to whatever penalties might apply to the failure to file;

(7) Agrees to notify the NHEDRS contact that the authorized official is no longer authorized to represent the reporter as soon as the authorization is revoked;

(8) Agrees to notify the NHEDRS contact that the signatory is no longer authorized to represent the reporter as soon as the authorization is revoked;

(9) Agrees to retain a copy of the fully executed subscriber agreement as long as the authorized official continues to represent the reporter; and

(10) Understands that transmitting an electronic document using the NHEDRS subjects the reporter and the authorized official to:

a. The same state or federal administrative, civil, criminal, or other penalties and remedies as apply to submitting incomplete, false, or misleading information in paper format;

b. Any applicable state or federal administrative, civil, criminal, or other penalties and remedies that apply to not complying with all requirements for using the NHEDRS; and

c. Criminal penalties for falsification in official matters, currently established in RSA 641.

(f) The signature of the signatory required by (d), above, shall constitute certification that the signatory:

(2) Has read and understands the rules in Env-C 214 relative to transmitting electronic documents for CROMERR compliance;

(3) Has been authorized to submit electronic documents on behalf of the reporter using the NHEDRS;

(4) Understands that the reporter and the signatory will be legally bound, obligated, and held responsible by the signatory’s use of the NHEDRS to the same extent as submitting a paper document bearing the signatory’s handwritten signature;

(5) Will review each electronic document to be submitted in a human-readable format prior to transmitting the document and only transmit those electronic documents the signatory believes to be true, complete, and not misleading;

(7) Understands that he or she will automatically receive an e-mail receipt from the NHEDRS for each submission that contains a valid electronic signature, which will identify the document received, the signatory, and the date and time of receipt;

(8) Will notify the NHEDRS contact if an e-mail receipt is not received as specified in (7), above, within 5 business days of transmitting any electronic document to the NHEDRS;

(9) Agrees to protect the signatory’s unique electronic signature device from compromise and from use by anyone else, and specifically agrees to:

a. Maintain the secrecy of the signatory’s access information;

b. Not divulge or delegate the signatory’s access information to any other individual;

c. Not store the access information in an unprotected location; and

d. Not allow any access information to be written into computer scripts to achieve automated log-in;

(10) Agrees to notify the NHEDRS contact as soon as possible, but no later than 24 hours, after suspecting or determining that the signatory’s access information has been lost, stolen, or otherwise compromised;

(11) Understands that the department may contact the authorized official identified on the subscriber agreement to verify the signatory’s identity;

(12) Agrees to notify the NHEDRS contact that he or she is no longer authorized to act as a signatory as soon as the authorization is revoked;

(13) Agrees to retain a copy of the fully executed subscriber agreement as long as he or she continues to act as a signatory; and

(14) Understands that transmitting an electronic document using the EDRS subjects the signatory to:

a. The same state or federal administrative, civil, criminal, or other penalties and remedies as apply to submitting incomplete, false, or misleading information in paper format;

b. Any applicable state or federal administrative, civil, criminal, or other penalties and remedies that apply to not complying with all requirements for using the EDRS; and

c. Criminal penalties for falsification in official matters, currently established in RSA 641.

Appendix A - Statutes/Regulations Implemented

Rule Section(s)

State Statute(s) Implemented

Env-C 201

RSA 541-A:16, I; RSA 541-A:30-a, III; all other statutes identified in this table

Env-C 201.02(b)

RSA 541-A:16, I(b)

Env-C 202

RSA 541-A:16, I; RSA 541-A:30-a, III; all other statutes identified in this table

Env-C 202.07

RSA 541-A:16, I

Env-C 203

RSA 541-A:16, I(a) and (b); RSA 541-A:30-a, III; all other statutes identified in this table

Env-C 204

RSA 541-A:16, I(b)(2); RSA 541-A:30, II; RSA 125-C:15, I-b; RSA 125-D:4; RSA 125-I:3-a; RSA 125-J:8, I-a; RSA 141-E:16; RSA 146-A:15; RSA 146-C:10-a; RSA 147-A:17-a; RSA 149-M:16; RSA 149-M:37, IV; RSA 482:79-a; RSA 482:89, II; RSA 482-A:13; RSA 483-B:18, III(c); RSA 485:58, IV; RSA 485-A:22,V; RSA 485-A:28, II; RSA 485-A:43,V; RSA 485-A:54,V; RSA 485-C:18; and RSA 487:7, II

Env-C 204.24

RSA 541-A:16, I(b)(2)

Env-C 205

RSA 541-A:16, I(b); RSA 541-A:11, I

Env-C 206

RSA 541-A:16, I(a) and (b); RSA 541-A:30-a, III; all other statutes identified in this table

Env-C 207

RSA 541-A:4; RSA 541-A:16, I(c)

Env-C 208

RSA 91-A:5, IV

Env-C 209

RSA 541-A:16, I(a) and (b); RSA 541-A:30, II; RSA 125-C:11; RSA 125-I:3, I; RSA 146-A:11-c; RSA 146-C:4; RSA 147-A:4; RSA 147-A:6; RSA 149-M:9; RSA 332-E:6; RSA 482:5; RSA 482:7; RSA 482:9; RSA 482:29; RSA 482:31; RSA 482-A:3; RSA 482-B:8, II; RSA 485:3; RSA 485:3-a; RSA 485-A:4, IX-b, IX-c, XVI-a and XVI-b; RSA 485-A:7-c; RSA 13, I(a); RSA 485-A:26, I; RSA 485-A:29; RSA 485-A:35, I; RSA 485-A:36, I; RSA 485-A:47; RSA 485-C:6-a; RSA 485-C:13

Env-C 209.07

RSA 541-A:16, I(b)

Env-C 210

RSA 541-A:16, I(a) and (b); RSA 91-A

Env-C 211

RSA 72:12-a

Env-C 212

RSA 541-A:16, I(d)

Env-C 213

RSA 21-G:37, I-V

Env-C 214

RSA 294-E; RSA 541-A:16, I(b)

Appendix B: Statutory Definitions

21-G:36:

III. “Request for application (RFA)” means an invitation to submit an offer to provide identified services to an agency where the amount of funding available and the particulars of how the services are to be provided are defined by the agency and where the selection of qualifying vendors will be according to identified criteria as provided in RSA 21-I:22-a and RSA 21-I:22-b.

IV. “Request for bid (RFB)” means an invitation to submit an offer to provide specified commodities or services to an agency at a price proposed by the bidder where selection is based on the lowest price meeting or exceeding specifications as stated in the bid.

V. “Request for proposal (RFP)” means an invitation to submit a proposal to provide specified goods or services, where the particulars of the goods or services and the price are proposed by the vendor and, for proposals meeting or exceeding specifications, selection is according to identified criteria as provided in RSA 21-I:22-a and RSA 21-I:22-b.

40 CFR § 3.3

Authorized program means a Federal program that EPA has delegated, authorized, or approved a state, tribe, or local government to administer, or a program that EPA has delegated, authorized, or approved a state, tribe or local government to administer in lieu of a Federal program, under other provisions of Title 40 and such delegation, authorization, or approval has not been withdrawn or expired.

Copy of record means a true and correct copy of an electronic document received by an electronic document receiving system, which copy can be viewed in a human-readable format that clearly and accurately associates all the information provided in the electronic document with descriptions or labeling of the information. A copy of record includes:

(1) All electronic signatures contained in or logically associated with that document;

(2) The date and time of receipt; and

(3) Any other information used to record the meaning of the document or the circumstances of its receipt.

Electronic document means any information in digital form that is conveyed to an agency or third-party, where “information” may include data, text, sounds, codes, computer programs, software, or databases. “Data,” in this context, refers to a delimited set of data elements, each of which consists of a content or value together with an understanding of what the content or value means; where the electronic document includes data, this understanding of what the data element content or value means must be explicitly included in the electronic document itself or else be readily available to the electronic document recipient.

Electronic document receiving system means any set of apparatus, procedures, software, records, or documentation used to receive electronic documents.

Electronic signature means any information in digital form that is included in or logically associated with an electronic document for the purpose of expressing the same meaning and intention as would a handwritten signature if affixed to an equivalent paper document with the same reference to the same content. The electronic document bears or has on it an electronic signature where it includes or has logically associated with it such information.

Electronic signature agreement means an agreement signed by an individual with respect to an electronic signature device that the individual will use to create his or her electronic signatures requiring such individual to protect the electronic signature device from compromise; to promptly report to the agency or agencies relying on the electronic signatures created any evidence discovered that the device has been compromised; and to be held as legally bound, obligated, or responsible by the electronic signatures created as by a handwritten signature.

Electronic signature device means a code or other mechanism that is used to create electronic signatures. Where the device is used to create an individual’s electronic signature, then the code or mechanism must be unique to that individual at the time the signature is created and he or she must be uniquely entitled to use it. The device is compromised if the code or mechanism is available for use by any other person.

Federal program means any program administered by EPA under any other provision of Title 40.

Federal reporting requirement means a requirement to report information directly to EPA under any other provision of Title 40.

Handwritten signature means the scripted name or legal mark of an individual, handwritten by that individual with a marking-or writing-instrument such as a pen or stylus and executed or adopted with the present intention to authenticate a writing in a permanent form, where “a writing” means any intentional recording of words in a visual form, whether in the form of handwriting, printing, typewriting, or any other tangible form. The physical instance of the scripted name or mark so created constitutes the handwritten signature. The scripted name or legal mark, while conventionally applied to paper, may also be applied to other media.

Subscriber agreement means an electronic signature agreement signed by an individual with a handwritten signature. This agreement must be stored until five years after the associated electronic signature device has been deactivated.

Transmit means to successfully and accurately convey an electronic document so that it is received by the intended recipient in a format that can be processed by the electronic document receiving system.

Valid electronic signature means an electronic signature on an electronic document that has been created with an electronic signature device that the identified signatory is uniquely entitled to use for signing that document, where this device has not been compromised, and where the signatory is an individual who is authorized to sign the document by virtue of his or her legal status and/or his or her relationship to the entity on whose behalf the signature is executed.

History

#12880, eff 9-30-19

Chapter Env-C 300 N.h. Environmental Laboratory Accreditation Program

Part Env-C 301 Purpose; Applicability; Incorporated Reference

N.H. Code Admin. R. Ann. Env-C 301.01 Purpose {#sec-env-c-301.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 301.01}

The purpose of the rules in this chapter is to implement RSA 485:44 and RSA 485:46 relative to establishing an environmental laboratory accreditation program.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 301.02 Applicability {#sec-env-c-301.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 301.02}

The rules in this chapter shall apply to:

(a) Any laboratory that is required to be accredited to perform laboratory analyses that will be accepted by regulatory agencies for compliance purposes;

(b) Any laboratory that voluntarily desires to be accredited to perform laboratory analyses that will be accepted by regulatory agencies for compliance purposes and used for non-regulatory purposes; and

(c) Any third party assessor organization (TPAO) that seeks approval to conduct accreditation assessments under these rules.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 301.03 Incorporated Reference {#sec-env-c-301.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 301.03}

For the purpose of this chapter, unless otherwise specified all references to the laboratory accreditation standards of The NELAC Institute (TNI standards) shall be to the 2016 edition, available as noted in Appendix B.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 302 Definitions

N.H. Code Admin. R. Ann. Env-C 302.01 Accreditation body {#sec-env-c-302.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.01}

“Accreditation body” means “accreditation body” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.02 Analyte list {#sec-env-c-302.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.02}

“Analyte list” means a list of the matrix, method, and analyte combinations that a laboratory has been accredited to perform.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.03 Applicant {#sec-env-c-302.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.03}

“Applicant” means the entity seeking accreditation for a laboratory.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.04 Assessor {#sec-env-c-302.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.04}

“Assessor” means an individual who performs an assessment of a laboratory’s capability and capacity for meeting the TNI standards by examining the records and other physical evidence for each one of the tests for which accreditation has been requested.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.05 Assessment {#sec-env-c-302.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.05}

“Assessment” means “assessment” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.06 Authorized agent {#sec-env-c-302.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.06}

“Authorized agent” means the individual, regardless of title, who is responsible for supervising overall laboratory procedures and test result reporting for the laboratory as a whole.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.07 Business entity {#sec-env-c-302.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.07}

“Business entity” means any for-profit or non-profit organization. The term does not include any government or government agency.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.08 Demonstration of capability {#sec-env-c-302.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.08}

“Demonstration of capability” means “demonstration of capability” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.09 Department {#sec-env-c-302.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.09}

“Department” means department of environmental services.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.10 Denial {#sec-env-c-302.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.10}

“Denial” means the accreditation body’s refusal to accredit, in total or in part, a laboratory applying for initial or renewal accreditation.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.11 Extraordinary assessments {#sec-env-c-302.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.11}

“Extraordinary assessments” means those assessments conducted as a result of complaints or changes in ownership, key personnel, location, scope of accreditation, or other matters that may affect the ability of a laboratory to meet applicable accreditation requirements.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.12 Field of accreditation {#sec-env-c-302.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.12}

“Field of accreditation” means “field of accreditation” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.13 Follow-up assessment {#sec-env-c-302.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.13}

“Follow-up assessment” means a type of assessment undertaken to verify effective implementation of corrective actions employed in response to an assessment.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.14 Initial assessment {#sec-env-c-302.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.14}

“Initial assessment” means a type of assessment that is comprehensive and involves reviewing all key activities performed by a laboratory applying for accreditation for the first time.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.15 Limited inorganic chemistry {#sec-env-c-302.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.15}

“Limited inorganic chemistry” means 6 or fewer matrix, method, and analyte combination analyses for inorganic analytes other than metals.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.16 Limited organic chemistry {#sec-env-c-302.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.16}

“Limited organic chemistry” means 6 or fewer matrix, method, and analyte combination analyses for organic analytes.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.17 Limit of quantitation (LOQ) {#sec-env-c-302.17 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.17}

“Limit of quantitation (LOQ)” means the lowest concentration of a target variable that can be reported with a specific degree of confidence.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.18 Method detection limit (MDL) {#sec-env-c-302.18 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.18}

“Method detection limit (MDL)” means the minimum measured concentration of a substance that can be reported with 99% confidence that the measured concentration is distinguishable from method blank results.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.19 New Hampshire Environmental Laboratory Accreditation Program (NH ELAP) {#sec-env-c-302.19 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.19}

“New Hampshire Environmental Laboratory Accreditation Program (NH ELAP)” means the program implemented by the department pursuant to RSA 485:44 to accredit laboratories in conformance with and consistent with TNI accreditation standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.20 National Environmental Laboratory Accreditation Program (NELAP) {#sec-env-c-302.20 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.20}

“National Environmental Laboratory Accreditation Program (NELAP)” means the program established by TNI for the accreditation of environmental laboratories.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.21 Person {#sec-env-c-302.21 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.21}

“Person” means “person” as defined in RSA 485:1-a, XIII, as reprinted in Appendix C.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.22 Primary accreditation body {#sec-env-c-302.22 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.22}

“Primary accreditation body” means the agency or department designated at the territory, provincial, state, or federal level as the authority recognized by the NELAP with responsibility and accountability for granting NELAP accreditation for a specific field of testing.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.23 Program manager {#sec-env-c-302.23 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.23}

“Program manager” means the department employee who is responsible for implementing the NH ELAP.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.24 Proficiency testing (PT) {#sec-env-c-302.24 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.24}

“Proficiency testing (PT)” means “proficiency testing” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.25 Proficiency testing provider (PT provider) {#sec-env-c-302.25 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.25}

“Proficiency testing provider (PT provider)” means “proficiency testing provider” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.26 Proficiency testing provider accreditor {#sec-env-c-302.26 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.26}

“Proficiency testing provider accreditor” means an organization that is approved by TNI to accredit and monitor the performance of proficiency testing providers.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.27 Quality system {#sec-env-c-302.27 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.27}

“Quality system” means “quality system” as defined in the TNI Standards Volume 1, Module 2, reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.28 Reassessment {#sec-env-c-302.28 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.28}

“Reassessment” means a type of biennial assessment similar in scope to an initial assessments.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.29 Revocation {#sec-env-c-302.29 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.29}

“Revocation” means “revocation” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.30 Secondary accreditation body {#sec-env-c-302.30 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.30}

“Secondary accreditation body” means an entity that grants accreditation to laboratories on the basis of accreditation granted by a primary accreditation body.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.31 Successful participation {#sec-env-c-302.31 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.31}

“Successful participation” and any other verb form of the term such as “successfully participate” or “successfully participated” means receiving a score of “acceptable” or “check for error” on:

(a) All available concentrations, for analyses accredited on an analyte-by-analyte basis; or

(b) The entire group, for analytes accredited as a group of interdependent analytes as described in Volume 1, Module 1 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.32 Successor in interest {#sec-env-c-302.32 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.32}

“Successor in interest” means any laboratory that is owned or controlled by an entity in which the majority of officials also owned or controlled the laboratory accredited under a previously-issued certificate.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.33 Surveillance assessment {#sec-env-c-302.33 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.33}

“Surveillance assessment” means a type of assessment that is less comprehensive than an initial assessment or reassessment, and occurs as-needed between an initial assessment and a reassessment.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.34 Suspension {#sec-env-c-302.34 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.34}

“Suspension” means “suspension” as defined in the TNI standards, Volume 1, as reprinted in Appendix D.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.35 Technical manager {#sec-env-c-302.35 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.35}

“Technical manager” means an individual, regardless of title, who is responsible for supervising laboratory procedures and test result reporting for a particular area of the laboratory.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.36 Third party assessor (TPA) {#sec-env-c-302.36 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.36}

“Third party assessor (TPA)” means an assessor who is not affiliated with the department.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.37 Third party assessor organization (TPAO) {#sec-env-c-302.37 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.37}

“Third party assessor organization (TPAO)” means an organization that employs one or more assessors.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.38 Unit cost {#sec-env-c-302.38 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.38}

“Unit cost” means the hourly rate of the department employee who conducts the work plus employee benefits and overhead.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 302.39 Written notice {#sec-env-c-302.39 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 302.39}

“Written notice” means a communication sent:

(a) On paper via U.S. Postal Service first class mail or via private delivery service;

(b) On paper sent by fax; or

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 303 Applications for Accreditation

N.H. Code Admin. R. Ann. Env-C 303.01 Application for Primary Accreditation {#sec-env-c-303.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.01}

(a) In order to request initial or renewed primary accreditation pursuant to RSA 485:44, the applicant shall submit a complete application as specified in (b), below, to the department:

(1) Electronically; or

(2) In hard copy, by mailing or otherwise delivering the application to:

NH Department of Environmental Services

Attn: Program Manager, NH ELAP

29 Hazen Drive

P.O. Box 95

Concord, N.H. 03302-0095.

(b) A complete application for primary accreditation shall include:

(1) The information specified in Env-C 303.03 on an “Application For Laboratory Accreditation with NH ELAP as a Primary Accreditation Body” form, NHDES-W-03-199, dated 12-17-2019 and available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-199, that has been signed and dated as specified in Env-C 303.02;

(2) Information detailing each method, matrix, and analyte combination for which accreditation is requested;

(3) The results of successful participation in a proficiency test (PT) study as specified in Volume 1, Module 1 of the TNI standards, submitted by the PT provider; and

(4) The fee specified in Env-C 303.08.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.02 Signatures Required {#sec-env-c-303.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.02}

(a) The application form shall be signed and dated by the individual designated by the applicant pursuant to Env-C 303.04(c).

(b) The signature shall constitute certification that:

(1) The information provided is true, complete, and not misleading to the knowledge and belief of the signer; and

(2) The signer understands that:

a. Any accreditation issued based on false, incomplete, or misleading information shall be subject to denial, suspension, or revocation; and

b. The signer is subject to the penalties specified in New Hampshire law, currently RSA 641:3, for making unsworn false statements.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.03 Information for Primary Accreditation {#sec-env-c-303.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.03}

An applicant for primary accreditation shall provide the following information:

(a) Whether the application is for a new laboratory, an update of a laboratory currently in the NH ELAP, or a renewal of a laboratory currently in the NH ELAP;

(b) For a renewal or update application, the laboratory identification number previously assigned by the department and the EPA laboratory identification number;

(d) The ownership information specified in Env-C 303.05;

(e) The laboratory operational information specified in Env-C 303.06; and

(f) The additional information specified in Env-C 303.07.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.04 Required Contact Information {#sec-env-c-303.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.04}

The contact information required by Env-Dw 303.03(c) shall be as follows:

(a) The legal name, mailing address, street address, billing address, daytime telephone number, and fax number of the laboratory and, if available, the e-mail address and web site address of the laboratory;

(b) The name, daytime telephone number, extension number, if applicable, and e-mail address of the individual at the laboratory who is the contact for purposes of the application;

(d) The name and daytime telephone number including extension, if applicable, of the authorized agent;

(e) The name and daytime telephone number including extension, if applicable, of the quality assurance officer; and

(f) The name and daytime telephone number including extension, if applicable, of the lead technical manager and of each additional technical manager.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.05 Required Ownership Information {#sec-env-c-303.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.05}

The ownership information required by Env-Dw 303.03(d) shall be as follows:

(a) Whether the laboratory seeking accreditation is owned by a business entity or a government entity;

(b) If the laboratory is owned by a business entity, the following:

(1) The type of business entity, such as corporation, a limited liability corporation, a partnership, a sole proprietorship, or another type, which shall be identified;

(2) The legal name of the business entity, if other than the legal name of the laboratory;

(3) The date the laboratory registered with the New Hampshire secretary of state;

(4) If the owner is a corporation, the date and state of incorporation; and

(5) The name and title of each principal official of the business entity, such as corporate officers or general partners; and

(c) If the laboratory is owned by a governmental entity, the name and primary mailing address of the federal, state, or local agency that owns the laboratory, if different from the information provided pursuant to Env-C 303.04(a).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.06 Required Laboratory Operation Information {#sec-env-c-303.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.06}

The laboratory operational information required by Env-C 303.03(e) shall be as follows:

(a) The type of laboratory, type of building housing the laboratory, floor plan space, utilities, and computer systems, including software;

(b) A list of all general use laboratory equipment, including the name and description of the equipment, the manufacturer, the manufacturer’s make and model, and the age and year purchased;

(d) The analytical methodology and equipment used for each analyte, matrix, and method combination for which accreditation is being sought;

(e) For a mobile laboratory, the vehicle identification number (VIN) or serial number;

(f) Laboratory hours of operation; and

(g) A demonstration of capability data for each new matrix, method, and analyte combination for which accreditation is sought.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.07 Additional Information Required for Primary Accreditation {#sec-env-c-303.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.07}

The additional information required by Env-C 303.03(e) shall be as follows:

(a) The amount of fees due, calculated in accordance with Env-C 303.08;

(b) The education and experience background of each technical manager;

(d) A resume for each technical manager that documents analytical laboratory experience;

(e) A paper copy and an electronic copy of the quality system manual (QSM) and standard operating procedures (SOPs) as specified in Env-C 308.02 and Env-C 308.03;

(f) Information regarding which of the methods allowed by Env-C 304.07 the laboratory intends to use to inform all prospective, current, and repeat New Hampshire clients of which analytes or categories it is accredited by NH ELAP to test; and

(g) A “NH ELAP Certificate of Compliance” form, NHDES-W-03-265, dated 11/25/2020, available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-265 that has been signed and dated by the authorized agent, each quality assurance officer, each technical manager, and the laboratory director, each of whom shall also type or print his or her name on the form, to constitute certification that each signer acknowledges that the laboratory is legally bound to:

(1) Fully comply with all applicable requirements of these rules and the TNI standards as incorporated into these rules;

(2) Provide NH ELAP administrative staff and assessors access to laboratory staff and to information, documents, and records as necessary for the assessment and maintenance of accreditation;

(3) Arrange the witnessing of laboratory services if requested in accordance with NH ELAP rules and the TNI standards;

(4) Claim accreditation only with respect to the latest scope of accreditation granted; and

(5) Pay fees as specified in Env-C 303.08, Env-C 303.09, and Env-C 303.10, as authorized by RSA 485:46, I.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.08 Fees for New or Renewal Applications {#sec-env-c-303.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.08}

(a) A nonrefundable application fee shall accompany each application for a new or renewal accreditation for drinking water matrix methods, non-potable water matrix methods, solid and chemical materials matrix methods, tissue matrix methods, or air matrix methods, or any combination thereof.

(b) The application fee required by (a), above, shall be the sum of:

(1) A $225 base fee;

(2) A sample preparation method fee of $28 per method;

(3) An additional fee for each non-standard performance-based or laboratory-developed method, as follows:

a. If column A applies, $112;

b. If column B applies, $135; and

c. If column C applies, $168; and

(4) All applicable amounts listed in Table 300-1 below, subject to the explanatory notes in (c), below:

Table 300-1: Additional Fees Included in Nonrefundable Fee

Accreditation Requested

Microbiology

$168

$197

$253

Pathogen analysis

$168

$197

$253

Limited inorganic chemistry only

$281

$309

$365

Limited organic chemistry only

$281

$309

$365

Limited inorganic chemistry

$168

$197

$253

Limited organic chemistry

$168

$197

$253

One or 2 metals

$168

$197

$253

Microbiology and limited inorganic chemistry

$225

$253

$337

Microbiology and one or 2 metals

$225

$253

$337

Microbiology, limited inorganic chemistry, and

one or 2 metals

$337

$365

$506

Metals

$478

$568

$731

Inorganic chemistry

$478

$568

$731

Metals and Inorganic chemistry

$562

$675

$815

Organic chemistry

$562

$675

$815

Radiological chemistry

$337

$365

$506

Whole Effluent or Sediment Toxicity Testing

$337

Whole Effluent and Sediment Toxicity Testing

$506

Radon in Water analysis

$168

(1) Column A shall apply to laboratories seeking accreditation for:

a. Drinking water matrix methods only;

b. Non-potable water matrix methods other than SW-846 methods (non-SW-846 methods) only;

c. Non-potable water matrix SW-846 methods only;

d. Tissue matrix methods only;

e. Air matrix methods only; or

f. Solid and chemical materials matrix methods only.

(2) Column B shall apply to laboratories seeking accreditation for any 2 matrix methods combinations listed in (1), above; and

(3) Column C shall apply to laboratories seeking accreditation for any combination of 3 or more matrix or methods combinations from (1), above.

(d) Accreditation shall not be granted if the correct application fee is not received by the department.

(e) The individual fees listed in Table 300-1 shall increase by 4%, rounded to the nearest whole dollar, on July 1 of each biennium beginning July 1, 2023.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.09 Fees to Modify Existing Accreditations {#sec-env-c-303.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.09}

(a) The fee to modify either a primary accreditation or a secondary accreditation at a laboratory’s request or based on a primary accreditation body’s accreditation requirements shall be the sum of all applicable amounts listed in Table 300-2, below, or $337, whichever is less:

Table 300-2: Fees for Requests to Modify Existing Accreditation

Reason for Request:

Fee

Update to latest revision or edition, Primary or Secondary Accredited Laboratories, one method; previous accreditation remains.

Method with 1 to 5 analytes

$28

Method with 6 to20 analytes

$38

Method with ≥ 21 analytes

$51

Update to latest revision or edition, Primary or Secondary Accredited Laboratories, multiple methods; previous accreditation remains.

Method with 1 to 5 analytes

$18

Method with 6 to20 analytes

$28

Method with ≥ 21 analytes

$38

Additional new accreditation per method per request, Secondary Accredited Laboratories

Method with 1 to 5 analytes

$18

Method with 6 to20 analytes

$28

Method with ≥ 21 analytes

$46

Additional new accreditation per method per request, Primary Accredited Laboratories

Method with 1 to 5 analytes

$33

Method with 6 to20 analytes

$56

Method with ≥ 21 analytes

$89

Additional same-technology same-matrix accreditation per method per request, Primary or Secondary Accredited Laboratories

Method with 1 to 5 analytes

$18

Method with 6 to 20 analytes

$28

Method with ≥ 21 analytes

$38

Drop accreditation per method per request, Primary or Secondary Accredited Laboratories

1 single Analyte Method

$11

2 – 10 single Analyte Methods

$18

≥ 11 single Analyte Methods

$28

Multi-Analyte Method

$18

(b) The individual fees listed in Table 300-2 shall increase by 4%, rounded to the nearest whole dollar, on July 1 of each biennium beginning July 1, 2023.

(d) Additional or updated accreditation requests shall not be processed until the applicable fee is received by the department.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.10 Reimbursable Expenses for Department Assessors {#sec-env-c-303.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.10}

(a) In addition to the nonrefundable application fee, the laboratory shall reimburse the department in accordance with (d) through (h), below, for the following costs associated with the department’s primary accreditation assessments, as applicable:

(1) Department staff expenses, calculated as the time needed to perform the tasks listed in a. through h., below, multiplied by the unit cost:

a. Completeness review of the application and documents supplied with the application;

b. Study of documents in preparation for the assessment;

c. Preparation of the checklists used for the assessment;

d. Communications with the applicant related to the assessment;

e. Travel to and from the laboratory;

f. Assessment of the laboratory;

g. Preparation of the assessment report(s); and

h. Review of any corrective action report(s) submitted per Env-C 309.04;

(2) Meals and lodging while on out-of-state assessments or in-state assessments that require an overnight stay; and

(3) Costs of transportation, which for public transportation shall include all fares and which for non-public transportation shall include:

a. Mileage;

b. Tolls paid, if any; and

c. Parking fees, if any.

(b) In addition to the nonrefundable application fee, the laboratory shall reimburse the department in accordance with (d) through (h), below, for the following costs associated with secondary assessments, calculated as the time needed to perform the tasks listed in (1) and (2), below, multiplied by the unit cost:

(1) Review of supporting documents related to additional or updated accreditation requests supplied by a laboratory; and

(2) Communications with the secondary accredited laboratory.

(c) In addition to the nonrefundable application fee, the laboratory shall reimburse the department in accordance with (d) through (h), below, for the following costs associated with the department’s review of TPAO assessment procedures and documentation, calculated as the time needed to perform the tasks listed in (1) through (5), below, multiplied by the unit cost:

(1) Review of supporting documents supplied by the applicant;

(2) Review of the draft checklist(s) and supporting documents supplied by a TPAO;

(3) Review of the draft and final assessment reports and any corrective action report(s);

(4) Communications with the applicant or the TPAO, or both, related to the assessment; and

(5) Quality control observations of TPAs performing on-site assessments, provided that if travel is required, the costs shall include costs identified in (a)(2) and (3), above, as applicable.

(d) The department shall inform the laboratory of the costs associated with the assessment with the assessment report.

(e) If accreditation is denied, revoked, or suspended based on the assessment, or if the laboratory withdraws its request for accreditation, the laboratory shall pay the costs of the assessment within 30 days of receiving the assessment report.

(f) If accreditation is granted or renewed, the laboratory shall pay the costs of the assessment prior to receiving its accreditation certificate and analyte list.

(g) Accreditation shall be denied, revoked, or suspended if the laboratory fails to pay the costs associated with any of the events covered by (a) through (c), above, within 30 days of receiving the assessment report.

(h) If payment is made by check or money order, the instrument shall be made payable to “Treasurer – State of New Hampshire”.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.11 Mobile Laboratories; Individual or Remote Sites {#sec-env-c-303.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.11}

(a) A mobile laboratory owned by an accredited fixed-based laboratory shall be considered an extension of the parent laboratory and shall not require separate accreditation if it:

(1) Operates under the same quality system as the fixed-based laboratory;

(2) Performs a subset of analyses for which the parent laboratory is accredited; and

(3) Analyzes samples exclusively from within the state in which the parent fixed-base laboratory is located.

(b) A mobile laboratory owned by an accredited fixed-base laboratory shall be considered a separate laboratory requiring separate accreditation, subject to the same application process, fees, assessments, and other requirements as any other environmental laboratory, if it:

(1) Does not operate under the same quality system as the fixed-based laboratory;

(2) Performs analyses for which the fixed-base laboratory is not accredited; or

(3) Analyzes samples from outside of the state in which the parent fixed-base laboratory is located.

(c) Individual or remote sites shall be subject to the same application process, fees, assessments, and other requirements as other environmental laboratories, subject to the following:

(1) A part of a laboratory that is in a building in proximity to the laboratory shall not be considered an individual or remote site; and

(2) A location that is only a sample collection site shall not be considered an environmental laboratory that is subject to the requirements of this chapter.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.12 Application for Secondary Accreditation {#sec-env-c-303.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.12}

(a) In order to request initial or renewal secondary accreditation, the applicant shall submit a complete application as specified in (b), below, to the department:

(1) Electronically; or

(2) In hard copy, by mailing or otherwise delivering the application to:

NH Department of Environmental Services

Attn: Program Manager, NH ELAP

29 Hazen Drive

P.O. Box 95

Concord, N.H. 03302-0095

(b) A complete application for secondary accreditation shall include:

(1) The information specified in Env-C 303.13 on an “Application For Laboratory Accreditation with NH ELAP as a Secondary Accreditation Body” form, NHDES-W-03-200, dated 12-17-2019 and available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-200, that has been signed and dated as specified in Env-C 303.02;

(2) Information detailing each method, matrix, and analyte combination for which accreditation is requested; and

(3) The fee specified in Env-C 303.08.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.13 Application Information for Secondary Accreditation {#sec-env-c-303.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.13}

An applicant for secondary accreditation shall provide the following information:

(a) All information required by Env-C 303.03(a) - (d) and Env-C 303.06(c);

(b) For the applicant’s primary accreditation body, the following:

(1) The name, mailing address, and main telephone number of the primary accreditation body;

(2) The name, mailing address, and daytime telephone number and, if available, an e-mail address, of an individual at the primary accreditation body who can be contacted relative to the applicant; and

(3) The date the applicant’s current primary accreditation will expire; and

(1) The name, mailing address, and main telephone number of the accreditation body;

(2) The name, mailing address, and daytime telephone number and, if available, an e-mail address, of an individual at the accreditation body who can be contacted relative to the applicant; and

(3) The date the applicant’s current accreditation from that accreditation body will expire.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.14 Additional Information Required for Secondary Accreditation Applications {#sec-env-c-303.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.14}

The applicant shall provide the following to the department with the completed application:

(a) All information required by Env-C 303.07;

(b) A copy of the most recent and valid certificate and analyte list from the primary accreditation body or accreditation bodies;

(d) Additional supporting documentation as necessary to verify laboratory compliance with applicable method, standard, or regulatory requirements.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.15 Out-of-state Laboratories Applying for Accreditation with NH ELAP as a Secondary Accreditation Body {#sec-env-c-303.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.15}

(a) Any laboratory located outside of New Hampshire applying for accreditation with the department as a secondary accreditation body shall submit a complete application as specified in Env-C 303.12.

(b) The laboratory shall also submit the following with the application:

(1) A copy of the certificate and analyte list(s) from its primary accreditation body with each accredited method, matrix, and analyte combination noted and the expiration date clearly indicated;

(2) A copy of any assessment report not more than 2 years old that was used to obtain the accreditation for each area accreditation is requested or was based on a complaint investigation;

(3) A copy of the response to each assessment report provided pursuant to (2), above, as applicable; and

(4) Copies of results from participation in proficiency test (PT) studies.

(c) The department shall recognize the accreditation granted by another primary accreditation body for the same matrix, method, and analyte combination that the department accredits laboratories as a primary accreditation body.

(d) The department shall recognize the accreditation for groups of analytes granted by another primary accreditation body only if the group is identical to a group that would be accredited by the department as the primary accreditation body.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.16 Out-of-state Laboratories Applying for Accreditation with NH as a Primary Accreditation Body {#sec-env-c-303.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.16}

(a) An out-of-state laboratory may request the department to be a primary accreditation body only if:

(1) There is no NELAP-approved accreditation body in the state or province in which the laboratory is located; or

(2) The primary accreditation body in the state or province in which the laboratory is located does not offer the fields of accreditation sought by the laboratory.

(b) Any laboratory located outside of New Hampshire applying for accreditation with the department as a primary accreditation body shall apply as specified in Env-C 303.01.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.17 Application Processing {#sec-env-c-303.17 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.17}

(a) The department shall not process an application until a complete application is received.

(b) Subject to (e) and (f), below, if the application is not complete when filed, the department shall send the applicant written notice of what is needed to complete the application.

(c) Upon notifying an applicant that the application is incomplete, the department shall suspend further processing of the application pending receipt of the information needed to complete the application.

(d) No portion of the time between the date a notice of incompleteness is provided and the date the applicant responds shall be included in computing the time limits for processing the application specified in RSA 541-A:29.

(e) The department shall notify the applicant by telephone in lieu of providing a written notice of incompleteness if:

(1) The anticipated time required of the applicant to correct the deficiency is less than the anticipated time required of the department to notify the applicant in writing; and

(2) The department is able to contact the applicant by telephone.

(f) If the department provides notice of incompleteness pursuant to (e), above, the department shall specify a reasonable time period for completing the application in the telephone notice, after which time written notice will be sent by the department in accordance with (b), above, if no response from the applicant is received by the department.

(g) Upon determining that an application is complete, the department shall review it and shall act on the application.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.18 Decision on Application {#sec-env-c-303.18 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.18}

The department shall approve an application and grant accreditation only if:

(a) The applicant has submitted a complete application as specified in Env-C 303.01 through Env-C 303.11 and Env-C 303.16, as applicable, for primary accreditation or Env-C 303.12 through Env-C 303.15 for secondary accreditation, as applicable;

(b) The applicant has paid all additional reimbursable expenses pursuant to Env-C 303.10;

(c) The criteria listed in Env-C 303.19 for primary accreditation or Env-C 303.21 for secondary accreditation, as applicable, have been met; and

(d) No grounds exist on which the accreditation would be denied, suspended, or revoked.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.19 Basis for Granting Primary Accreditation {#sec-env-c-303.19 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.19}

(a) In determining whether to approve an application for primary accreditation, the department shall consider:

(1) The results of successful participation in a PT study as specified in Volume 1, Module 1 of the TNI standards;

(2) The results of an initial assessment, a reassessment, a surveillance, an extraordinary assessment, or a follow-up assessment, as applicable; and

(3) The results of the review of documentation submitted as part of the application process.

(b) Accreditation status shall be either “Accredited” for a laboratory meeting the TNI standards, or “Not Accredited” for a laboratory not meeting the TNI standards, based upon the criteria specified in (a), above, and Env-C 303.18.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.20 Interim Status {#sec-env-c-303.20 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.20}

(a) If a laboratory completes all of the requirements for accreditation except for the on-site component of the assessment because the department is unable to schedule the on-site assessment and a third-party assessor is not available, the department shall issue an interim accreditation upon request by the laboratory.

(b) Interim status accreditation shall allow the laboratory to perform analyses and report results with the same status as an accredited laboratory until the on-site component of the assessment requirements have been completed, provided that interim accreditation status shall not exceed 12 months.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.21 Basis for Granting Secondary Accreditation {#sec-env-c-303.21 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.21}

(a) In determining whether to approve an application for secondary accreditation, the department shall consider:

(1) The matrix, method, and analyte combination listed on the analyte list of the primary accreditation body;

(2) The matrix, method, and analyte combination available in the department’s fields of accreditation;

(3) The accreditation status information from the primary accreditation body; and

(4) The results of the review of documentation submitted as part of the application process.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 303.22 Application for Renewal {#sec-env-c-303.22 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 303.22}

(a) Any accredited laboratory wishing to renew its accreditation shall submit an application for renewal to the department in accordance with this section.

(b) The application for renewal of primary accreditation shall:

(1) Comply with Env-C 303.01; and

(2) Be submitted to the department prior to the expiration date of the current accreditation.

(1) Comply with Env-C 303.11 through Env-C 303.15; and

(2) Be submitted to the department prior to the expiration date of the current accreditation.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 304 Accreditation Issuance and Transferal

N.H. Code Admin. R. Ann. Env-C 304.01 Issuance of Certificates and Analyte Lists {#sec-env-c-304.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.01}

(a) Any accreditation issued by the department pursuant to Env-C 303 shall be valid for one year from the date of initial issuance unless sooner suspended or revoked in accordance with Env-C 311.

(b) A certificate or analyte list issued as a replacement for an existing certificate or analyte list shall be valid until the expiration date of the certificate or analyte list that it is replacing.

(1) The name and address of the laboratory;

(2) A statement that continued accreditation depends on compliance with these rules;

(3) A statement requesting that customers verify the laboratory’s accreditation status with the department;

(4) A NH ELAP identification number; and

(5) An effective date and expiration date of the certificate.

(d) The certificate shall be accompanied by the laboratory’s analyte list.

(e) The department shall issue a new analyte list whenever any change in the laboratory’s fields of accreditation is approved.

(f) The analyte list shall:

(1) List the name, address, and telephone number of the laboratory;

(2) Have each page numbered with the total number of pages indicated;

(3) Specify a unique analyte list number;

(4) List the effective date and expiration date of the analyte list; and

(5) List each matrix, method, and analyte combination for which the laboratory has been accredited.

(g) The laboratory shall post or display its most recent certificate and analyte list in a location within the laboratory where clients or potential clients visiting the laboratory would be most likely to see them.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 304.02 Withdrawal from Accreditation; Return of Certificate and Analyte Lists {#sec-env-c-304.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.02}

(a) An accredited laboratory that wishes to withdraw from the NH ELAP shall so inform the department in writing no later than 30 days prior to the end of the laboratory’s accreditation year.

(b) A laboratory accredited by the department shall return its original certificate and analyte list(s) to the department if:

(1) Accreditation is totally suspended, revoked, or denied;

(2) The request for accreditation is voluntarily withdrawn; or

(3) When a new analyte list is issued by another primary accreditation body.

(1) Accreditation is partially suspended, revoked, or denied; or

(2) Accreditation status is updated as a result of PT results.

(d) The laboratory shall not return to the department expired certificate(s) or analyte list(s).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 304.03 Notification of Changes Required {#sec-env-c-304.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.03}

(a) As required by RSA 485:44, X, a laboratory shall provide written notice to the department of any changes in ownership, location, personnel, methodology, or other factors significantly affecting the performance of analyses for which it is accredited within 5 business days of the change.

(b) For purposes of this section, “other factors significantly affecting the performance of analyses for which it is accredited” means any circumstances that impede the performance of the analyses, including but not limited to damage to the laboratory’s office(s) or equipment, or both, from fire or natural disasters.

(c) A notification submitted pursuant to (a), above, for changes to the authorized agent, laboratory director, quality assurance officer, or technical manager positions shall include an updated application and certificate of compliance.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 304.04 Transferring Accreditation: Name Change Only {#sec-env-c-304.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.04}

(a) If a laboratory changes its name but does not make any change identified in Env-C 304.05(a), the laboratory director shall:

(1) Inform the department in writing of the new name within 30 calendar days of the change of name; and

(2) Certify under penalties of false swearing that none of the changes identified in Env-C 304.05(a) are also being made.

(b) Within 10 business days of receipt of a notice pursuant to (a), above, the department shall issue a replacement certificate in the new name of the laboratory, provided it has no credible basis to believe that additional changes are being made.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

(a) A laboratory’s accreditation shall not be directly transferable when the ownership, the location, the analytical instrumentation, the principal officers, or the local management of the laboratory changes.

(b) The laboratory director shall provide written notice to the department as required by Env-C 303.03 of any change related to the laboratory’s capabilities, as specified in Volume 2, Module 3, Section 7.0 of the TNI standards.

(c) The laboratory shall submit updated application information as specified in Env-C 303 for each change with the written notice required by (b), above.

(d) The department shall issue a new certificate and analyte list within 14 calendar days of receiving the application if there is a change in location. The expiration date of the new certificate and analyte list shall be the same as the expiration date on the certificate and analyte list being replaced.

(e) If the department is the primary accreditation body, the department shall conduct an assessment of the laboratory within 60 calendar days if changes reported by the laboratory affect the day-to-day operations of the laboratory.

(f) If a laboratory determines that it will be appointing a new technical manager, the laboratory shall inform the department in writing of its intent within 30 calendar days of making its determination.

(g) The proposed technical manager shall meet the educational and experience requirement of Volume 1, Module 2, Section 5.2.6 of the TNI standards.

(h) The notice provided pursuant to (e), above, shall include a copy of the college transcript and resume of the proposed new technical manager, if the individual has been selected at the time the notice is provided.

(i) If a technical manager is appointed by the laboratory without approval by the department and it is determined that the new technical manager does not meet the requirements of Volume 1, Module 2, Section 5.2.6 of the TNI standards, accreditation of the affected area(s) shall be suspended in accordance with Env-C 311.02.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 304.06 Use of NH ELAP Name and TNI/NELAP Logo {#sec-env-c-304.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.06}

(a) For purposes of this section, “business materials” means any written, printed, or electronic document, including but not limited to laboratory test reports, catalogs, advertising, business solicitations, quotations, or contracts, and any information provided on a website.

(b) An accredited laboratory shall provide only true, complete, and not misleading information regarding its NH ELAP fields of accreditation, methods, analytes, or accreditation status on any business materials.

(c) When an accredited laboratory uses the NH ELAP name or the TNI/NELAP logo on any business materials, the laboratory shall include the laboratory’s NH ELAP assigned 4-digit laboratory identification number.

(d) The accredited laboratory shall use its department certificate and analyte list, department accreditation status, and the TNI/NELAP logo only to show compliance with the TNI standards.

(e) A laboratory accredited by the department shall not use its certificate, analyte list, accreditation status, or the TNI/NELAP logo to imply endorsement by the accreditation body or bring the accreditation body into disrepute.

(f) If accreditation is denied, suspended, revoked, or withdrawn, the laboratory shall:

(1) Discontinue the use of all business materials that contain any reference to the laboratory’s past NH ELAP accreditation for the affected analyses; and

(2) Delete any reference to the past NH ELAP accreditation for the affected analyses from its website.

(g) If accreditation is denied, suspended, revoked, or withdrawn, the laboratory shall return all copies and original certificates and analyte lists to the department as specified in Env-C 304.02(b) and (c).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 304.07 Providing Information on Accreditation Status {#sec-env-c-304.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 304.07}

(a) A laboratory shall inform all prospective New Hampshire clients of which matrix, method, and analyte combination(s) it is accredited by the department to test using one of the following methods:

(1) Providing a copy of the laboratory’s current certificate and analyte list to prospective clients with all sample kits;

(2) Providing a list of tests for which the laboratory is accredited with all sample kits;

(3) Using an asterisk or other mark with the appropriate legend to indicate accreditation status next to the test on a price list or other literature supplied with all sample kits; or

(4) Providing the address of a website where the accreditation information is located.

(b) The list of tests for which the laboratory is accredited by the department to perform shall be indicated on or with the test report by one of the following methods:

(1) Using an asterisk or other mark next to the result or the name of the test with the appropriate legend to indicate accreditation status on the face of the report;

(2) Providing a copy of the laboratory’s current certificate and analyte list with all test results;

(3) Providing a list of tests for which the laboratory is accredited with all test results; or

(4) Providing the address of a website where the accreditation information is located.

(1) Sending a written notice;

(2) Sending a copy of the new certificate or analyte list, or both, at the time of the change instead of informing the client each time a sample kit is sent; or

(3) Providing the address of a website where the new accreditation information is located.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 305 General Requirements for Accreditation

N.H. Code Admin. R. Ann. Env-C 305.01 Accreditation Requirements {#sec-env-c-305.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.01}

To be accredited for specific analytes, the laboratory shall meet all requirements specified in Env-C 305.02 through Env-C 305.14, and the applicable educational requirements in Env-C 306.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.02 Personnel {#sec-env-c-305.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.02}

(a) The laboratory shall have an authorized agent.

(b) The laboratory shall have at least one technical manager who meets the educational requirements in Env-C 306 for each specific matrix, method, and analyte combination of accreditation.

(c) The laboratory shall have a quality assurance officer or individual designated as accountable for data quality as specified in Volume 1, Module 2, Section 4.1.7.1 of the TNI standards.

(d) The laboratory also shall meet:

(1) All organizational and management requirements specified in Volume 1, Module 2, Section 4.0 of the TNI standards; and

(2) All organizational and personnel requirements specified in Volume 1, Module 2, Section 5.2 of the TNI standards.

(e) The laboratory analytical staff shall:

(1) Successfully perform an initial demonstration of capability for each matrix, method, and analyte combination prior to using any method, and any time there is a change in instrument type, or method, or any time that a method has not been performed by the analyst in a 12-month period; and

(2) Once the initial demonstration of capability has been passed, successfully perform an ongoing demonstration of capability for each matrix, method, and analyte combination on an annual basis.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.03 Technical Manager Responsibilities and Qualifications {#sec-env-c-305.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.03}

(a) A technical manager shall be a full-time laboratory staff member who conducts actual day-to-day supervision of laboratory procedures and test result reporting.

(b) The duties of a technical manager shall include, but not necessarily be limited to:

(1) Monitoring standards of performance in quality control and quality assurance;

(2) Monitoring the validity of the analyses performed and data generated in the laboratory to assure reliable data;

(3) Ensuring that sufficient numbers of qualified personnel are employed to supervise and perform the work of the laboratory; and

(4) Providing educational direction to laboratory staff.

(c) An individual shall not be the technical manager of more than one NELAP-accredited environmental laboratory without providing written notification to the primary accreditation body.

(d) A technical manager who is absent for more than 15 consecutive calendar days shall designate another full-time staff member meeting the qualifications of technical manager to temporarily perform this function.

(e) If a technical manager is absent for more than 65 consecutive calendar days, the quality assurance officer or the staff member temporarily performing the technical manager’s functions shall notify the accreditation body in writing, by mail, or electronically.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.04 Exceptions to Technical Manager Qualifications {#sec-env-c-305.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.04}

(a) In lieu of the educational requirements in the applicable sections of Env-C 306, the technical manager of an environmental laboratory for a drinking water or wastewater treatment facility may be a full-time employee of the facility who:

(1) Holds a valid operator’s certificate appropriate to the nature and size of such facility within the scope of that facility’s regulatory permit; and

(2) Has not less than 2 years of experience testing the kind of samples required by the facility’s permit.

(b) In lieu of the educational requirements in the applicable sections of Env-C 306, the technical manager of an environmental laboratory for an industrial waste treatment facility may be a full-time employee of the facility who has not less than 2 years of supervised experience testing the kind of samples required by that facility’s permit.

(c) Any individual who does not meet the applicable education requirements specified in Env-C 306 but who possesses the requisite experience shall qualify as a technical manager subject to the conditions specified in Volume 1, Module 2, Section 5.2.6.2(c) of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.05 Laboratory Facilities {#sec-env-c-305.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.05}

The laboratory facilities shall meet the requirements as specified in Volume 1, Module 2, Section 5.3 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.06 Laboratory Equipment, Calibration, and Measurement Traceability {#sec-env-c-305.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.06}

(a) The laboratory equipment, including support equipment, shall meet the requirements as specified in Volume 1, Module 2, Section 5.5 of the TNI standards.

(b) The laboratory shall have reference standards and reference materials that meet requirements relative to measurement traceability as specified in Volume 1, Module 2, Section 5.6 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.07 Analytical Methodology {#sec-env-c-305.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.07}

The laboratory shall meet the analytical methodology requirements as specified in Volume 1, Module 2, Section 5.4 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.08 Sample Collection, Handling, and Preservation {#sec-env-c-305.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.08}

The laboratory shall meet the sample collection, handling and preservation requirements as specified in Volume 1, Module 2, 5.7 and Module 2, Section 5.8 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.09 Quality Assurance Requirements {#sec-env-c-305.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.09}

(a) The laboratory shall develop and implement a quality system in accordance with Volume 1, Module 2 of the TNI standards that incorporates the essential quality control requirements specified in Volume 1, Modules 3 through 7 of the TNI standards.

(b) If the quality control requirements of Volume 1, Modules 2 through 7 of the TNI standards and the requirements in an approved method differ, the laboratory shall use the requirements that result in a higher level of confidence in testing results.

(c) The laboratory shall analyze laboratory control samples whenever whole volume material, concentrated material, or spiking solution material is available to create or otherwise prepare laboratory control samples.

(d) An appropriate clean matrix material shall be used in laboratory reagent blank and laboratory control sample preparation associated with solid and chemical materials and biological tissue analytical procedures.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.10 Calibration of Instruments {#sec-env-c-305.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.10}

(a) The laboratory shall meet the instrument calibration requirements specified in Volume 1, Module 2, Section 5.5 of the TNI standards.

(b) If the requirements in Volume 1, Module 2, Section 5.5 of the TNI standards and the requirements in an approved method differ, the laboratory shall use the requirements that result in a higher level of confidence in testing results.

(1) A standard obtained from a manufacturer other than the one that produced the calibration standards used by the laboratory; or

(2) A standard obtained from the same manufacturer that produced the calibration standards but from a different lot that was independently prepared from different source materials.

(d) If option (c)(2) is used, the laboratory shall maintain records from the manufacturer to document that the 2 lots were prepared independently from different source materials.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.11 Records and Data Reporting {#sec-env-c-305.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.11}

(a) The laboratory shall meet the records and data reporting requirements specified in Volume 1, Module 2, Section 4.13 and 5.10 of the TNI standards.

(b) All quality control and sample analytical results shall include the appropriate unit of measure.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.12 Response to Laboratory Results for Compliance Purpose Samples {#sec-env-c-305.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.12}

When a response required by Env-Dw 719.02 is a designated laboratory responsibility, the laboratory shall promptly notify the department of:

(a) Exceedance results as required by Env-Dw 719.02(c); and

(b) All other results in the time frame and format designated in Env-Dw 719.02.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.13 Outside Support Services and Supplies {#sec-env-c-305.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.13}

(a) The laboratory shall meet the outside support and supplies requirements as specified in Volume 1, Module 2, Section 4.6 of the TNI standards.

(b) The laboratory shall meet the subcontracting of environmental tests requirements as specified in Volume 1 Module 2 Section 4.5 of the TNI standards.

(1) Be responsible to the customer for the subcontractor’s work; and

(2) Communicate to the client any failure to meet the client’s data quality objectives.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 305.14 Complaints {#sec-env-c-305.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 305.14}

The laboratory shall meet the requirements for handling complaints as specified in Volume 1, Module 2, Sections 4.8 and 4.11 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 306 Specific Education Requirements for Categories of Testing

N.H. Code Admin. R. Ann. Env-C 306.01 Educational Requirement for Microbiology {#sec-env-c-306.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.01}

(a) To be accredited for microbiological or pathogen analysis, the technical manager shall have:

(1) A bachelor’s degree in microbiology, biology, chemistry, environmental sciences, physical sciences, or engineering, with a minimum of 16 college semester credit hours in general microbiology and biology; and

(2) At least 2 years of experience in the environmental analysis of representative analytes for which the laboratory is seeking approval, provided that a master’s degree or doctoral degree in one of the disciplines listed in (1), above, may be substituted for one year of experience.

(b) Subject to (c), below, an employee of a laboratory engaged in microbiological analyses limited to total coliform, fecal coliform, E. coli, and standard plate count who has an associate’s degree in an appropriate field of the sciences or applied sciences, with a minimum of 4 college semester credit hours in general microbiology and one year experience, shall be deemed to meet the educational and experience requirements for a technical manager for microbiology.

(c) College education that includes at least 2 years of equivalent and successful education, including the microbiology requirement, may be substituted for the associate’s degree.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 306.02 Educational Requirement for Radiology {#sec-env-c-306.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.02}

To be accredited for radiological analysis, the technical manager shall have:

(a) A bachelor’s degree in chemistry, engineering, or environmental, biological, or physical sciences with at least 24 college semester credit hours in chemistry; and

(b) At least 2 years of experience in the radiological analysis of environmental samples, provided that a master’s or doctoral degree in one of the disciplines listed in (a), above, may be substituted for one year of experience.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 306.03 Educational Requirement for Radon Testing {#sec-env-c-306.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.03}

To be accredited for radon analysis, the technical manager shall have:

(a) An associate’s degree or 2 years of college; and

(b) At least one year of experience in the measurement of radon or radon progeny, or both.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 306.04 Educational Requirement for Toxicity Analysis {#sec-env-c-306.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.04}

To be accredited for toxicity analysis, the technical manager shall have:

(a) A bachelor’s degree in microbiology, biology, chemistry, environmental sciences, physical sciences, or engineering, with a minimum of 16 college semester credit hours in general microbiology and biology; and

(b) At least 2 years of experience in the environmental analysis of representative biological, physical science, inorganic or organic analytes for which the laboratory is seeking approval, provided that a master’s or doctoral degree in one of the above disciplines may be substituted for one year of experience.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 306.05 Educational Requirement for Chemical Analysis {#sec-env-c-306.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.05}

To be accredited for chemical analysis, the technical manager shall meet the following qualifications:

(a) A bachelor’s degree in chemistry, environmental sciences, biological sciences, physical sciences, or engineering, with at least 24 college semester credit hours in chemistry; and

(b) At least 2 years of experience in the environmental analysis of representative inorganic and organic analytes for which the laboratory is seeking approval, provided that a master’s degree or doctoral degree in one of the disciplines listed in (a), above, may be substituted for one year of experience.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 306.06 Educational Requirement for Asbestos Analysis {#sec-env-c-306.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 306.06}

To be accredited for microscopic examination of asbestos or airborne fibers, the technical manager shall have:

(a) For procedures requiring the use of a transmission electron microscope:

(1) A bachelor’s degree in chemistry, environmental sciences, biological sciences, physical sciences, or engineering;

(2) Successful completion of a course in the use of the instrument; and

(3) One year of supervised experience in the use of the instrument.

(b) For procedures requiring the use of a polarized light microscope:

(1) An associate’s degree or 2 years of college study in any of the areas listed in (a)(1), above;

(2) Successful completion of a formal course in polarized light microscopy; and

(3) One year of supervised experience in the use of the instrument, which shall include experience in the identification of minerals.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 307 Proficiency Testing (pt)

N.H. Code Admin. R. Ann. Env-C 307.01 Participation in Scheduled and Supplemental Proficiency Testing {#sec-env-c-307.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.01}

(a) Laboratories shall use proficiency testing (PT) providers approved by:

(1) TNI;

(2) The U.S. Environmental Protection Agency (EPA);

(3) Other proficiency test providers that are also accreditation bodies; or

(4) A proficiency testing provider accreditor.

(b) Laboratories seeking to become accredited or to maintain accreditation shall perform analyses of PT samples for each field of accreditation for which NH ELAP accreditation is sought, as described in Volume 1, Module 1 of the TNI standards.

(c) Prior to requesting PT samples or otherwise participating in a PT study, a laboratory shall obtain an EPA laboratory identification code, where applicable, which is the EPA identification code the laboratory uses when reporting results to an approved PT provider.

(d) The laboratory seeking or maintaining accreditation shall obtain scheduled and supplemental PT samples that meet the requirements of Volume 1, Module 1 of the TNI standards from any PT provider as required by Volume 1, Module 1 of the TNI standards.

(e) Subject to (h), below, each laboratory seeking to become accredited or to maintain accreditation shall participate in at least 2 PT studies per year provided by a PT Provider as required by Volume 1, Module 1 of the TNI standards.

(f) In addition to (e) above, the laboratory shall successfully participate annually in at least one PT study for each drinking water method and analyte for which accreditation is sought.

(g) Subsequent PT studies for initial or continuing accreditation shall be conducted in accordance with Volume 1, Module 1 of the TNI standards.

(h) Any laboratory seeking to obtain initial accreditation for whole effluent toxicity or to maintain such accreditation shall successfully participate in at least one discharge monitoring report-quality assurance (DMR-QA) study per year provided by a PT provider.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.02 PT Sampling Handling {#sec-env-c-307.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.02}

(a) The laboratory shall analyze PT samples in the same manner as is used for routine environmental samples using the same staff, sample tracking, sample preparation and analysis methods, standard operating procedures, calibration techniques, quality control procedures, and acceptance criteria.

(b) There shall be at least 7 calendar days between the closing date(s) of PT samples that resulted in not-acceptable results and the opening date(s) of subsequent PT samples.

(1) Low level PT samples for low level method accreditation; and

(2) Medium level PT samples for regular or standard method accreditation.

(d) A laboratory shall analyze a DMR-QA PT sample in place of a non-potable water PT when required by a wastewater program standard or a TNI standard. If this substitution is made, the quality control and corrective action requirements of the DMR-QA shall be met.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.03 PT Study Deemed Not Acceptable {#sec-env-c-307.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.03}

(a) Failure to meet the schedule specified in Env-307.01 shall be regarded as a not-acceptable study.

(b) A laboratory may participate in a supplemental study for not-acceptable analyses, for missed analyses, or for meeting the PT requirements for a new analysis as allowed in Volume 1 Module 1, of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.04 Employees and PT Sample Security {#sec-env-c-307.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.04}

(a) An analyst employed at more than one laboratory shall:

(1) Before analyzing any PT sample, inform the department, in writing, that the analyst is employed at more than one laboratory;

(2) Declare to the department the date on which each laboratory plans to analyze the PT sample;

(3) Analyze the PT sample in only one laboratory; and

(4) Not analyze any PT sample for that round of testing after analyzing the first PT sample.

(b) Laboratory personnel, including corporate personnel, shall meet the PT sample security requirements of Volume 1, Module 1, Section 4.1.5 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.05 Initial and Continued Accreditation PT Samples {#sec-env-c-307.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.05}

(a) A laboratory that seeks accreditation for a field of accreditation for which it has not been previously accredited shall:

(1) Successfully complete 2 PT studies for each requested field of accreditation out of the most recent 3 rounds attempted within the 18 months preceding the application; and

(2) Maintain a PT study history for initial accreditation in accordance with Volume 1, Module 1 of the TNI standards during the application and accreditation process.

(b) In order to maintain accreditation, an accredited laboratory shall maintain a history of at least 2 successful PT studies out of the most recent 3 PT studies attempted.

(c) A laboratory may withdraw from a PT study for one or more analytes or for the entire study if the laboratory notifies both the PT provider and the primary accreditation body before the closing date of the PT study.

(d) Withdrawal from a PT study shall not exempt the laboratory from participating in the semiannual schedule required by Env-C 307.01(e).

(e) Failure to meet the PT requirements shall result in a suspension of accreditation of the affected fields of accreditation following the procedures established in Env-C 311.02.

(f) Failure to take the appropriate corrective action to address suspended accreditation due to PT failures shall result in a revocation of the affected fields of accreditation following the procedures established in Env-C 311.03.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.06 Reporting PT Study Results {#sec-env-c-307.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.06}

(a) After analyzing the PT samples, the laboratory shall:

(1) Return the results to the PT study provider for scoring no later than 45 calendar days from the date of sample receipt;

(2) Accurately and completely report the required matrix, technology key, method code, analyte code, and result information for each PT sample; and

(3) Authorize the PT provider to release all accreditation and remediation results and acceptable/not acceptable status directly to the primary accreditation body, the proficiency test provider accreditor, and the laboratory.

(b) Errors in reporting the proper matrix, the method used, or the tested analytes in the PT study by the laboratory shall be graded as “not acceptable”.

(c) The department shall evaluate only results received directly from the PT provider as specified in Volume 1, Module 1 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.07 PT Study Record Retention {#sec-env-c-307.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.07}

(a) The laboratory shall maintain copies of all written, printed, and electronic records pertaining to PT sample analyses for 5 years or for as long as is required by the applicable regulatory program, whichever is greater.

(b) Records retained pursuant to (a), above, shall include, but not be limited to:

(1) Bench sheets;

(2) Instrument strip charts or printouts;

(3) Data calculations;

(4) Data reports;

(5) The PT study report forms used by the laboratory to record PT results; and

(6) The PT study report form that documents the submitted results.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 307.08 Proficiency Testing S {#sec-env-c-307.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 307.08}

tudy Results Review. If a laboratory receives a “not acceptable” result for any PT sample, the laboratory shall:

(a) Review each “not acceptable” result to determine:

(1) What caused the error; and

(2) What corrective action(s) the laboratory needs to take to correct the problem;

(b) Document in its own records the cause(s) and corrective action(s) the laboratory has taken to correct each problem that caused or contributed to the “not acceptable” result;

(c) Submit the results of its own investigation and a corrective action report to the department within 30 calendar days of receiving the results; and

(d) Initiate corrective action that is documented in a corrective action report submitted to the department before requesting a supplemental PT study.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 308 Quality Systems Manual and Standard Operating Procedures Manual

N.H. Code Admin. R. Ann. Env-C 308.01 Establishing and Documenting Quality Systems {#sec-env-c-308.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.01}

(a) The laboratory shall define and document its policies and objectives for, and its commitment to, accepted laboratory practices and quality of testing services in a quality system that is:

(1) Based on the required elements found in Volume 1, Module 2 of the TNI standards;

(2) Appropriate to the type, range, and volume of environmental testing activities it undertakes; and

(3) Documented in the organization’s quality systems manual as specified in Env-C 308.02.

(b) The laboratory’s quality assurance officer shall maintain the quality systems manual to ensure that it remains accurate and up-to-date.

(d) Laboratory management shall ensure that the laboratory’s policies and objectives are communicated to, understood by, and implemented by all laboratory personnel, by conducting:

(1) Internal audits as specified in Volume 1, Module 2, 4.14 of the TNI standards;

(2) Managerial reviews as specified in Volume 1, Module 2, 4.15 of the TNI standards; and

(3) Data integrity investigations as specified in Volume 1, Module 2, 4.16 of the TNI standards.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 308.02 Quality Systems Manual {#sec-env-c-308.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.02}

(a) The laboratory shall prepare and maintain a quality systems manual that meet the requirements specified in Volume 1, Module 2, Sections 4.2.8.3 and 4.2.8.4 of the TNI standards.

(b) The quality systems manual shall:

(1) Represent the laboratory’s normal day to day operating procedures and policies;

(2) State that all laboratory staff must follow all specified procedures and policies;

(3) Describe or reference the procedures for the development of in-house limits for analytical method quality control standards when not defined by the reference method; and

(4) Describe or reference the procedures for reviewing and validating analytical method support activities, analytical results, and reported analytical results.

(c) The quality systems manual shall either include the standard operating procedures (SOPs) or reference where the SOPs are maintained.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 308.03 Documenting Standard Operating Procedures (SOPs) {#sec-env-c-308.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.03}

(a) The laboratory shall prepare:

(1) An SOP for preparing and implementing SOPs for laboratory activities, which shall include identifying the title of each position responsible for approving each SOP, known as the approving authority(ies);

(2) An accurate written SOP for each laboratory administrative activity, including but not limited to sampling, sample receiving, employee training, reporting analytical results, verification of analytical results, internal audits, and corrective actions; and

(3) An accurate written SOP for each laboratory analytical activity, including but not limited to test methods, instrument operation, data generation and quality control sample analysis; and corrective actions.

(b) The analytical SOPs shall meet the requirements specified in Volume 1, Module 2, Section 4.2.8.5 of the TNI standards. If the method allows modifications, the modification used by the laboratory shall be documented in the SOPs.

(c) The laboratory shall maintain a copy of each SOP and a record of SOP effective dates for the same period of time that records of the data generated by those procedures are required to be maintained.

(d) Copies of each current SOP shall be made available to all personnel engaged in laboratory activities to which a particular SOP applies.

(e) Each official version of a SOP shall bear the signature(s) of the approving authority(ies).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 308.04 Implementing SOPs {#sec-env-c-308.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.04}

(a) The analyst shall use only the official version of the applicable laboratory SOP or a controlled copy of the official version of the SOP for all laboratory activities related to the analysis of compliance samples and any other sample analyses for which accreditation is required.

(b) The laboratory shall maintain a record of each sample that is not analyzed as required by the SOPs.

(1) Laboratory sample identification;

(2) For each deviation from the SOP, the following:

a. A description of the deviation;

b. The reason(s) for the deviation; and

c. Client authorization or acknowledgment of the deviation; and

(3) An analytical report that identifies all quality control failure qualifiers.

(d) In order to be properly evaluated against quality control limits, each analytical SOP shall require that:

(1) Quality control standard results are calculated and recorded as percent recovery or other applicable and valid statistical technique; and

(2) Duplicate samples are calculated and recorded as a relative percent difference or other applicable and valid statistical technique.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 308.05 Corrective Actions {#sec-env-c-308.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.05}

(a) The laboratory shall implement general procedures to be followed when departures from documented policies, procedures, and quality control (QC) measures have occurred.

(b) The laboratory shall document departures from documented policies, procedures, and QC measures and the corrective actions taken as specified in Volume 1, Module 2, Sections 4.9 and 4.11 of the TNI standards.

(c) The laboratory’s documented corrective action shall include a description of the nonconforming work or departure from a policy or procedure, a root cause analysis, a selection of corrective action, an implementation of corrective action, monitoring of corrective action, additional audits performed, and signed and dated approval of laboratory management.

(d) Where possible, the laboratory shall report data only if all laboratory policies and procedures have been followed and QC measures are acceptable.

(e) If a QC measure is found to be a departure from documented policies, procedures, and QC measures and the data is to be reported, all samples associated with the failed QC measure shall be reported with appropriate data qualifier(s).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 308.06 Essential Quality Control Procedures {#sec-env-c-308.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 308.06}

(a) All laboratories shall:

(1) Develop and implement protocols to monitor QC measures as specified in Volume 1, Module 2, Section 5.9 of the TNI standards;

(2) Assess and evaluate all QC measures on an on-going basis;

(3) Use the laboratory’s documented QC acceptance criteria to determine the usability of the data; and

(4) Develop and implement procedures for the development of QC sample acceptance/rejection criteria where no method, data quality objective, or regulatory criteria exist.

(b) QC requirements for specific analytes shall be as specified in the TNI standard identified in table 300-3, below, and the reference method(s) upon which accreditation has been granted:

Table 300-3: Applicable QC Requirements

Type of Testing

TNI Standard

Asbestos

Volume 1, Module 3, Section 1.7.2

Chemical

Volume 1, Module 4, Section 1.7.3

Microbiology

Volume 1, Module 5, Section 1.7.3

Radiochemical

Volume 1, Module 6, Section 1.7.2

Toxicity

Volume 1, Module 7, Section 1.7.1

Pathogens

Volume 1, Module 5, Section 1.7.3

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 309 Assessments

N.H. Code Admin. R. Ann. Env-C 309.01 Initial Assessments, Reassessments, and Surveillance Assessments {#sec-env-c-309.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 309.01}

(a) When serving as the primary accreditation body, the department shall not issue an accreditation prior to completion of an assessment in accordance with Volume 2, Module 3, Section 6.0 of the TNI standards.

(b) In order to maintain NH ELAP accreditation, a laboratory for which the department is the primary accreditation body shall be assessed for all fields of accreditation on a frequency of at least once every 18 to 30 months.

(c) An initial assessment or reassessment shall include an administrative review of the application for completeness and a technical review of the application, quality systems manual, SOPs, and any other document submitted with the application.

(d) Surveillance assessments shall be performed to monitor a laboratory’s ability to meet requirements of accreditation between an initial assessment or reassessment and a scheduled reassessment.

(e) Laboratory personnel shall allow duly-authorized employees of the department or an approved TPAO to enter the premises of any laboratory accredited under these rules during the laboratory’s normal business hours to determine compliance with the department’s rules and with applicable TNI standards.

(f) Assessors shall have access to interview any and all staff engaged in activities related to the areas for which the laboratory requests accreditation.

(g) Arrangements for an assessment shall be made between the program manager or TPAO and the laboratory’s authorized agent or contact person.

(h) If a laboratory refuses to allow a scheduled assessment, the department shall:

(1) Deny initial accreditation; or

(2) Initiate revocation proceedings to revoke or refuse to renew an existing accreditation.

(i) The assessment team shall use the TNI quality systems checklist(s) and technical checklists prepared by the department to conduct the assessment.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 309.02 Extraordinary Assessments {#sec-env-c-309.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 309.02}

(a) The department or TPAO shall conduct an extraordinary assessment of a laboratory for which the department is the primary accreditation body if the program manager receives a written complaint or other credible information indicating that:

(1) The laboratory is not meeting the requirements of its accreditation under these rules or the TNI standards; or

(2) The laboratory is engaged in an improper, illegal, or deceptive practice.

(b) An extraordinary assessment shall be unannounced if laboratory records could be destroyed or altered if prior notice is given.

(1) Confirm that corrective actions were implemented after a previous assessment; or

(2) To determine whether reported changes in the laboratory’s ownership, key personnel, location, scope of accreditation, or other matters have affected the ability of a laboratory to fulfill accreditation requirements.

(d) The assessor shall use either a TNI quality systems checklist or a checklist prepared by the department to evaluate the merits of the information or complaints received by the program manager that were relied upon to justify an extraordinary assessment.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 309.03 Follow-up Assessments {#sec-env-c-309.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 309.03}

(a) The department or TPAO shall conduct a follow-up assessment if:

(1) The deficiencies noted during any assessment are so numerous or serious that the laboratory no longer meets the requirements for accreditation of the laboratory in part or in whole;

(2) The laboratory’s responses to a previous assessment report and the follow-up assessment report were inadequate; or

(3) Any deficiency noted during an initial assessment or any deficiency identified during a reassessment was the same as a deficiency identified during any previous assessment.

(b) The follow-up assessment shall be completed and reported within 30 calendar days after receipt of the laboratory’s corrective action plan if the deficiencies are of such severity as to possibly warrant revoking, suspending, or withholding of the laboratory’s accreditation.

(c) If the department issues a decision to suspend, revoke, or refuse to renew an accreditation that the laboratory appeals, the department shall conduct a follow-up assessment to examine the laboratory’s facilities, records, and personnel to determine the merits of the appeal.

(d) The assessor shall use the TNI quality systems checklist(s) and technical checklists prepared by the department to conduct the follow-up assessment.

(e) The laboratory may request the follow-up assessment to be canceled by withdrawing the request for accreditation for the affected field of accreditation or the appeal, as applicable.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 309.04 Assessment Report; Corrective Action Report {#sec-env-c-309.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 309.04}

(a) The department or TPAO shall issue a written assessment report electronically to the laboratory within 30 calendar days of any assessment.

(b) If deficiencies are identified in the assessment report, the laboratory shall, within 30 calendar days of receiving the assessment report, prepare and submit, to the department or TPAO as applicable based on who provided the assessment report to the laboratory, a corrective action report that:

(1) Explains how each deficiency has been corrected or will be corrected; and

(2) Includes supporting documentation, where possible, to show how each deficiency was corrected or will be corrected.

(c) The laboratory shall submit the corrective action report required by (b), above, electronically, using a format that is compatible with that of the department or TPAO, as applicable based on who provided the assessment report to the laboratory.

(d) If the laboratory wants additional time to submit the report required by (b), above, the laboratory shall:

(1) Submit a written request to the department, on paper or electronically, prior to the original deadline, which explains why additional time is needed; and

(2) Negotiate in good faith to establish a new deadline.

(e) Within 30 calendar days of receipt of the corrective action report, the department or TPAO, as applicable, shall:

(1) Determine whether the submitted corrective actions are acceptable based on the applicable TNI standard(s), reference method(s), state rule(s), or federal regulation(s); and

(2) Notify the laboratory in writing of its determination, by sending:

a. A letter, if the submitted corrective actions are acceptable; or

b. A follow-up report, if the submitted corrective actions are not acceptable.

(f) If the notice provided pursuant to (e), above, identifies any deficiency(ies) in the corrective action report, the laboratory shall submit a revised corrective action report, with supporting documentation as provided in (b), above, electronically within 30 calendar days of the date of the notice.

(g) Within 30 calendar days of receipt of the revised corrective action report, the department or TPAO, as applicable, shall inform the laboratory in writing if the submitted revised corrective actions are acceptable or not based on the applicable TNI standard(s), reference method(s), state rule(s), or federal regulation(s).

(h) The department shall base its decision to grant or deny initial accreditation or to suspend, revoke, or refuse to renew an existing accreditation based on its evaluation of the corrective action report, the revised corrective action report, if any, and PT sample results and information submitted with the application.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 310 Third Party Assessor Organizations; Third Party Assessors

N.H. Code Admin. R. Ann. Env-C 310.01 Mandatory Use of Third Party Assessor Organization (TPAO) {#sec-env-c-310.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.01}

(a) The department shall require an in-state or out-of-state laboratory to use a TPAO for part or all of an assessment if:

(1) Based on available resources, the department will not be able to perform an on-site assessment within the required on-site time frame, for example because of the number and complexity of the field(s) of accreditation for which accreditation is sought;

(2) Based on available resources, the department will not be able to perform an initial or reassessment within the required 2 year plus or minus 6 months time frame; or

(3) The department staff lacks expertise in a field of accreditation requested by the laboratory.

(b) The department shall notify the laboratory, in writing, of the need to use a TPAO within 30 days of receiving a laboratory’s application for initial accreditation or at the time an accreditation renewal application is sent to a laboratory, as applicable.

(1) Choose the TPAO to conduct the assessment from the list of approved TPAOs prepared by the department pursuant to Env-C 310.05(d); and

(2) Not later than one month prior to the scheduled onsite assessment, inform the department in writing of which TPAO the laboratory has contracted with.

(d) If the authorized agent fails to comply with (c), above, the department shall inform the authorized agent, in writing, that accreditation shall not be granted or renewed until the requirements of (c), above, have been met.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 310.02 Optional Use of TPAO {#sec-env-c-310.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.02}

(a) A laboratory may request the department to allow the use of a TPAO to conduct the assessment in lieu of the department by submitting a written request that:

(1) Identifies the TPAO the laboratory wishes to use;

(2) Explains why the laboratory wishes to have the TPAO conduct the assessment in lieu of the department; and

(3) Provides sufficient information and documentation, which may take the form of a sworn affidavit from the laboratory director, that the criteria specified in (b), below, are met.

(b) The department shall approve a request to use a TPAO submitted pursuant to (a), above, if:

(1) The TPAO chosen by the laboratory is on the list of approved TPAOs prepared by the department pursuant to Env-C 310.05(d);

(2) The department is not aware of any complaints pending against the laboratory;

(3) The laboratory has not made any changes in key personnel, major equipment, or laboratory location within the previous 6 months; and

(4) If applicable, the laboratory has completed all corrective actions needed as a result of any prior assessment(s).

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 310.03 Payment For TPAO Assessments {#sec-env-c-310.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.03}

(a) The laboratory shall pay all costs associated with a third party assessment directly to the TPAO.

(b) The laboratory shall pay all department expenses related to the review and processing of TPAO assessment support documentation, quality control observations, report(s), and laboratory corrective actions to the department per the fee schedule specified in Env-C 303.10.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 310.04 Application for Initial or Renewal Approval of TPAOs {#sec-env-c-310.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.04}

(a) In order to be approved by the department, a TPAO shall submit the information specified in (b), below, on a “Third Party Assessor Organization Application (TPAO) for Approval” form, NHDES-W-03-201, dated 12-17-2019 and available at https://onlineforms.nh.gov/?FormTag=NHDES-W-03-201, to the department electronically.

(b) A complete application for TPAO approval shall include the following:

(1) The legal name, mailing address, street address, billing address, daytime telephone number, and fax number of the TPAO and, if available, the e-mail address and website address of the TPAO;

(2) Whether the TPAO is a business entity or a government entity;

(3) If the TPAO is a business entity, the following:

a. The type of business entity, such as corporation, general or limited partnership, sole proprietorship, or limited liability company, and the legal name of the business entity, if other than the legal name of the TPAO;

b. The date the TPAO registered with the New Hampshire secretary of state and the business identification number assigned by the secretary of state’s office;

c. If the TPAO is a corporation, the date and state of incorporation; and

d. The name and title of each principal official of the business entity, such as corporate officers or general partners;

(4) If the TPAO is a federal, state, county, or local agency, the name and primary mailing address of the agency, if different from the information provided pursuant to (b)(1), above;

(5) The name, daytime telephone number, extension number, if applicable, and e-mail address of the individual at the TPAO who is the contact for purposes of the application;

(6) The name and title of the individual authorized by the TPAO to sign the application;

(7) The full legal name of each current and former affiliated and parent organization;

(8) The geographic area(s) in which the TPAO provides service, both domestic and foreign;

(9) The name, title, and qualifications of each individual TPA employed or otherwise used by the TPAO for laboratory accreditation assessments;

(10) Documentation that the TPAO meets the criteria specified in Env-C 310.05(a);

(11) An affidavit signed as specified in (12), below, that the TPAO:

a. Certifies that the statements regarding the TPAO’s qualifications, systems, approved assessor lists, and supporting documentation provided on or with the application are true, complete, and not misleading to the best of the applicant’s knowledge and belief;

b. Understands that application forms and supplemental application documentation and materials are considered public data;

c. Acknowledges receipt of a copy of the Tennessen Warnings provided with the application package and has read and understands the contents;

d. Acknowledges that all current or former relationships, associations, or investments that may influence or appear to influence the applicant’s judgment, discretion, or impartiality with laboratories applying to or accredited by the program have been disclosed, and that if a conflict of interest is confirmed, the TPAO will not knowingly access records of those laboratories for personal gain and will again declare the conflict of interest to the department if is the applicant assigned duties where a conflict may be perceived to affect the applicant’s judgment; and

e. Agrees to comply with all applicable requirements of the state of New Hampshire and the NH ELAP related to assessment of environmental laboratories and protection of the data obtained while preparing, performing, or supervising the assessment activities; and

(12) The affidavit required by (10), above, shall be:

a. Signed by the individual authorized by the TPAO to sign the application; and

b. Notarized by a notary public in the jurisdiction in which the affidavit is executed.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 310.05 Approval of TPAOs {#sec-env-c-310.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.05}

(a) The department shall approve a TPAO to conduct assessments if the TPAO:

(1) Submits all information required by Env-C 310.04;

(2) Documents that each of its TPAs meets the requirements specified in:

a. Volume 2, Module 1, Sections 6.1.4 and 6.2.4 of the TNI standards; and

b. Volume 2, Module 3, Sections 4.2 through 4.4 of the TNI standards;

(3) Submits copies of quality system documentation that describes the TPAO operations related to on-site assessments;

(4) Agrees to conduct assessments that meet the assessment procedures specified in Volume 2, Module 3, Section 6.0 of the TNI standards;

(5) Agrees to use the quality systems checklist and technical checklists prepared by the department, or approved by the department as being equivalent to the department-prepared checklists, when conducting assessments;

(6) Agrees to provide to the department a copy of the checklists used for an assessment with all findings recorded in hard copy or electronic copy within one calendar week of the assessment closing conference;

(7) Agrees to provide a hard copy or electronic copy of all handwritten notes and documents used to prepare the checklists described in (6), above, to the department; and

(8) Agrees to provide a draft of the assessment report to the department within 7 business days of the assessment closing conference.

(b) The department shall notify an applicant for approval as a TPAO in writing of the approval or denial of its application. If the application is denied, the notice shall specify the reason(s) for the denial.

(c) Upon being notified of its approval, the TPAO shall enter into a written agreement with the department by which it commits to meet the requirements of (a)(4) through (7), above, prior to conducting an assessment pursuant to Env-C 310.01 or Env-C 310.02.

(d) The department shall maintain a list of approved TPAOs on its website.

(e) TPAO approvals shall be valid for one year unless sooner suspended or revoked per Env-C 311.03.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 310.06 Review of TPAO Work {#sec-env-c-310.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 310.06}

(a) The department shall review all work performed by a TPAO to determine compliance with Env-C 300 and the TNI standards.

(b) Disputes between a laboratory and a TPAO concerning issues raised during the assessment process shall be brought to the attention of the program manager.

(c) If the work performed by a TPAO does not comply with Env-C 300 and the TNI standards, the department shall reject the work and:

(1) Return any work not in compliance to the TPAO with a written notice identifying the work that is not acceptable;

(2) Send written notice to each laboratory whose pending accreditation review relies on the assessment performed by the TPAO of any unacceptable work performed by the TPAO; and

(3) Provide the TPAO an opportunity to correct the unacceptable work within 30 days.

(d) If the TPAO wishes to correct the unacceptable work, the TPAO shall resubmit its work to the department within 30 days of the date of the written notice provided pursuant to (c)(2), above.

(e) The department shall review any resubmitted work from a TPAO in accordance with this section.

(f) The department shall suspend the approval of a TPAO for any field of accreditation for which the work of the TPAO has been rejected and not corrected within 30 days.

(g) The department shall not grant accreditation to a laboratory for any field of accreditation for which the work of the TPAO has been rejected and not corrected.

(h) Department staff shall:

(1) Observe the physical on-site assessment procedure of the TPAO on an annual basis;

(2) Notify a TPAO of any failure to meet the requirements of Env-C 310; and

(3) Provide the TPAO an opportunity to correct any failure to meet the applicable regulation.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Part Env-C 311 Denial, Suspension, or Revocation of Accreditation

N.H. Code Admin. R. Ann. Env-C 311.01 Denial {#sec-env-c-311.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.01}

(a) Reasons for the department to deny a primary accreditation application for initial or renewal accreditation shall include:

(1) Failure to submit a completed application within 60 days after notification of apparent errors or omissions;

(2) Failure of laboratory staff to meet the personnel qualifications as required by the TNI standards including those related to education, training, and experience;

(3) Failure to successfully analyze and report proficiency testing samples as required by Volume 1, Module 1 of the TNI standards;

(4) Failure to respond to an assessment report with a corrective action report within the required 30 calendar days after receipt of the assessment report, as required by Env-C 309.04(b);

(5) Failure to implement the corrective actions detailed in the corrective action report as required by Env-C 309.04;

(6) Failure to pay required fees;

(7) Misrepresentation of any material fact pertinent to receiving or maintaining accreditation;

(8) Refusal to allow an assessor to enter during normal business hours for an assessment; and

(9) Failure to implement a quality system as required by the applicable provision(s) of Env-C 308.

(b) Reasons for the department to deny a secondary accreditation application for initial or renewal accreditation shall include:

(1) Accreditation has been denied by the primary accreditation body;

(2) Failure to submit a completed application within 60 days after notification of apparent errors or omissions;

(3) Failure to pay required fees; and

(4) Misrepresentation of any material fact pertinent to receiving or maintaining accreditation.

(d) If the laboratory is not successful in correcting the deficiencies, the laboratory shall wait at least 6 months before reapplying for accreditation.

(e) Upon reapplication, the laboratory shall be responsible for all of the fees incurred as part of the application for accreditation.

(f) A laboratory whose application for initial accreditation has been denied may request reconsideration. Any reconsideration request shall be filed in accordance with Env-C 206.

(g) No laboratory’s application for renewal accreditation shall be denied without opportunity for a hearing in accordance with Env-C 311.04.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 311.02 Suspension {#sec-env-c-311.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.02}

(a) Reasons for the department to suspend a primary accreditation shall include:

(1) The primary accreditation body finds during the assessment that emergency action is needed to protect public health or safety;

(2) Failure to notify the primary accreditation body within 30 calendar days of major changes in:

a. Laboratory ownership;

b. Location;

c. Key personnel named on the application; or

d. Analytical instrumentation;

(3) Failure to maintain a quality system as defined in Volume 1, Module 2 of the TNI standards; and

(4) Failure of laboratory to employ staff that meet the personnel qualifications for education, training, and experience as required by the TNI standards.

(b) The department shall send written notice to the laboratory of the department’s intent to suspend the laboratory’s accreditation.

(1) Identify each reason for the proposed suspension and each field of accreditation that is proposed to be suspended; and

(2) Inform the laboratory that:

a. Its accreditation shall be suspended 10 days from the date of the written notice unless the laboratory sends a written request for a hearing to the department that is received by the department prior to the expiration of that time period;

b. The accreditation shall remain suspended until the laboratory takes all corrective actions needed to address the reasons for suspension and submits proof that the corrective actions have been completed to the department; and

c. If the laboratory does not take all corrective actions needed to address the reason(s) for suspension and submit proof that the corrective actions have been completed to the department within 6 months of the effective date of the suspension, the accreditation shall be revoked.

(d) Except as provided in (e), below, if a laboratory submits a request for a hearing as specified in (c)(2)a., above, then the laboratory’s accreditation shall remain in effect until a decision is issued after a hearing is conducted in accordance with Env-C 200 as applicable to adjudicative proceedings.

(e) Accreditation shall be suspended for each affected field of accreditation where the laboratory fails 2 out of the most recent 3 PT studies. The suspension shall remain in effect until the laboratory has successfully participated in 2 out of the 3 most recent PT studies. The laboratory shall not be required to reapply for accreditation if the suspension is for failure on PT studies. The suspension shall take effect upon the primary accrediting body’s processing of the PT results.

(f) After a laboratory’s accreditation has been suspended, the laboratory shall not continue to analyze samples for clients who need analytical results from an accredited laboratory in the field(s) of testing for which the laboratory’s accreditation has been suspended.

(g) A laboratory shall not need to reapply for accreditation if the cause(s) for suspension are corrected within 6 months of the effective date of the suspension.

(h) If the laboratory does not correct each basis for suspension within 6 months of the effective date of the suspension, the accreditation that had been suspended shall be revoked.

(i) The laboratory shall retain accreditation for the fields of accreditation in which it continues to meet the requirements of the TNI standards.

(j) The laboratory’s suspended accreditation status shall be changed to accredited when the laboratory demonstrates to the department that the laboratory has corrected the cause of the suspension.

(k) Secondary accreditation shall:

(1) Be suspended by the department if the accreditation granted by the primary accreditation body has been suspended; and

(2) Remain suspended until accreditation is reinstated by the primary accreditation body.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 311.03 Revocation {#sec-env-c-311.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.03}

(a) Reasons for the department to revoke a primary accreditation, including an interim status accreditation, shall include:

(1) Failure to submit an acceptable corrective action plan in response to an assessment report;

(2) Failure to implement corrective action(s) related to any deficiencies found during an assessment after submitting 2 corrective action plans as specified in Env-C 309.04;

(3) Failure to respond to an assessment report with a corrective action plan within 30 calendar days of the assessment report date;

(4) Failure to participate in the proficiency testing program as required by Volume 1, Module 1 of the TNI standards;

(5) Submittal of proficiency test sample results generated by another laboratory as its own;

(6) Misrepresentation of any material fact pertinent to receiving or maintaining accreditation;

(7) Refusal to allow an assessor to enter during normal business hours for an assessment;

(8) Determination of civil or criminal liability by a court of competent jurisdiction for falsifying any report:

a. Relating to a laboratory analysis; or

b. Submitted to any government entity for an official purpose.;

(9) Failure to remit accreditation fees within the time limit established by the department; or

(10) Failure to implement corrective actions to correct deficiencies within the time period specified in the laboratory’s corrective action plan.

(b) After correcting the cause(s) for revocation, the laboratory may reapply for accreditation no sooner than 6 months from the effective date of the revocation.

(d) Secondary accreditation shall:

(1) Be revoked by the department if the accreditation granted by the primary accreditation body has been revoked; and

(2) Remain revoked until accreditation is reinstated by the primary accreditation body.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 311.04 Action to Deny Application for Renewal Accreditation or to Revoke Accreditation {#sec-env-c-311.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.04}

(a) Whenever the department has reason to consider denial of an application for renewal accreditation or revocation of a laboratory’s accreditation, it shall initiate an adjudicative proceeding in accordance with the applicable provisions of Env-C 200.

(b) The laboratory shall be given an opportunity to be heard as provided in Env-C 200 prior to any final action being taken.

(c) The department shall notify the laboratory of its decision in writing by certified mail, return receipt requested. If renewal accreditation is denied or if accreditation is revoked, the written decision shall specify the reason(s) for the decision.

(d) The laboratory shall remain accredited with continued successful PT participation until the department has issued a decision to revoke or refuse to renew the accreditation.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 311.05 Reconsideration of Accreditation Status {#sec-env-c-311.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.05}

(a) A laboratory whose accreditation has been revoked or refused renewal may request reconsideration of the decision.

(b) Any request for reconsideration shall be made in accordance with Env-C 206.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

N.H. Code Admin. R. Ann. Env-C 311.06 Successor in Interest Applying for Reaccreditation {#sec-env-c-311.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 311.06}

The revocation or suspension of accreditation shall operate to prohibit any successor in interest from applying for reaccreditation from NH ELAP until the end of the term for which the accreditation was revoked or suspended.

Appendix A: State Statutes Implemented

Rule

State Statute(s) Implemented

Env-C 301, Env-C 302

RSA 485:44, II; RSA 485:47, I

Env-C 303

RSA 485:44, I; RSA 485:44, VII; RSA 485:46; RSA 485:47

Env-C 304

RSA 485:44, II; RSA 485:44 VII; RSA 485:44, X

Env-C 305, Env-C 306

RSA 485:44, II; RSA 485:44 III; RSA 485:47

Env-C 307

RSA 485:44, II; RSA 485:44, III; RSA 485:47, I

Env-C 308

RSA 485:44, II; RSA 485:47, I

Env-C 309, Env-C 310

RSA 485:44, II, RSA 485:47, I

Env-C 311

RSA 485:44, IX, RSA 485:47, III; RSA 541-A:16, I

Appendix B: Incorporated Reference

Rule (Env-C)

Reference (Date/Edition)

Obtain From (Cost)

301.03; 303.01(b)(3); 303.19(a)(1); 304.05(g)&(i); 305.02(c)&(d)(1)-(2); 305.05; 305.06; 305.07; 305.08; 305.09(a)&(b); 305.10(a)&(b); 305.11; 305.13; 305.14; 307.01(b), (d), (e), & (g); 307.03(b); 307.05(a)(2); 307.06(c); 308.01(a)(1)&(d)(1)-(3); 308.02; 308.03(b); 308.05(b); 308.06(a)&(e); 309.01(e); 311.01(a)(3); 311.02(a)(3); 311.03(a)(4)

Laboratory Accreditation Standards, Volume 1: Management and Technical Requirements for Laboratories Performing Environmental Analysis (2016)

The NELAC Institute

P.O. Box 2439

Weatherford, TX 76096

817-598-1624

Cost for Single Use version Volume 1: $290 and Volume 2: $250; TNI members can receive a discount based on the membership level (member, patron, sponsor, partner)

Order on-line at:

http://www.nelac-institute.org/content/CSDP/standards.php

301.03; 304.05(b); 309.01(a)&(e); 310.05(a)(2)&(3)

Laboratory Accreditation Standards, Volume 2: General Requirements for Accreditation Bodies Accrediting Environmental Laboratories (2016)

Appendix C: Statutory Definitions

RSA 485:1-a:

XIII. “Person” means any individual, partnership, company, public or private corporation, political subdivision or agency of the state, department, agency or instrumentality of the United States, or any other legal entity.”

Appendix D: The NELAC Institute Volume 1, Module 1 & 2 Definitions

“Accreditation body” means the territorial, state or federal agency having responsibility and accountability for environmental laboratory accreditation and which grants accreditation”.

“Assessment” means the evaluation process used to measure or establish the performance, effectiveness, and conformance of an organization and/or its systems to defined criteria (to the standards and requirements of laboratory accreditation).

“Demonstration of Capability” means a procedure to establish the ability of the analyst to generate analytical results of acceptable accuracy and precision.

“Field of Accreditation” means those matrix, technology/method, and analyte combinations for which the accreditation body offers accreditation.

“Proficiency Testing (PT)” means a means of evaluating a laboratory’s performance under controlled conditions relative to a given set of criteria through analysis of unknown samples provided by an external source.

“Proficiency Testing Provider (PTP)” means a person or organization accredited by the TNI-approved Proficiency Testing Provider Accreditor to operate a TNI-compliant PT program.

“Quality System” means a structured and documented management system describing the policies, objectives, principles, organizational authority, responsibilities, accountability, and implementation plan of an organization for ensuring quality in its work processes, products (items), and services. The quality system provides the framework for planning, implementing, and assessing work performed by the organization and for carrying out required quality assurance (QA) and quality control (QC) activities.

“Revocation” means the total or partial withdrawal of a laboratory’s accreditation by an accreditation body.

“Suspension” means the temporary removal of a laboratory’s accreditation for a defined period of time, which shall not exceed six (6) months or the period of accreditation, whichever is longer, in order to allow the laboratory time to correct deficiencies or area of non-conformance with the Standard.

History

(See Revision Note at chapter heading for Env-C 300) #12065, eff 1-1-17; ss by #13291, eff 11-23-21

Chapter Env-C 500 Prequalification of Licensed Engineering Firms for Certain Projects

Part Env-C 501 Purpose and Applicability

N.H. Code Admin. R. Ann. Env-C 501.01 Purpose {#sec-env-c-501.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 501.01}

The purpose of the rules in this chapter is to establish the procedures and criteria for licensed engineering firms to be listed on the roster of prequalified licensed engineering firms maintained by the department for licensed engineering firms that provide consulting services for the planning, design, and construction of public water supply projects or water pollution control projects, or both.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 501.02 Applicability {#sec-env-c-501.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 501.02}

The rules in this chapter shall apply to licensed engineering firms that:

(a) Wish to become prequalified and listed on the roster of prequalified licensed engineering firms as maintained by the department; or

(b) Wish to renew a listing on the roster.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

Part Env-C 502 Definitions

N.H. Code Admin. R. Ann. Env-C 502.01 Applicant {#sec-env-c-502.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.01}

“Applicant” means the licensed engineering firm that is seeking to be listed on the roster or to have an existing listing renewed.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.02 Board {#sec-env-c-502.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.02}

“Board” means the board of professional engineers established by RSA 310-A:3.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.03 Business organization {#sec-env-c-502.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.03}

“Business organization” means “business organization” as defined in RSA 310-A:2, I-a, namely “any enterprise, whether corporation, partnership, limited liability company, proprietorship, association, business trust, real estate trust, or other form of organization; organized for gain or profit, carrying on any business activity within the state.”

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.04 Debarment {#sec-env-c-502.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.04}

“Debarment” means removal of a listed licensed engineering firm from the roster, including by refusing to renew a listing.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.05)

N.H. Code Admin. R. Ann. Env-C 502.05 Department {#sec-env-c-502.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.05}

“Department” means the department of environmental services.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.06)

N.H. Code Admin. R. Ann. Env-C 502.06 Engineering services {#sec-env-c-502.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.06}

“Engineering services” means the report preparation, technical design, construction administration, and resident engineering work that require the consulting services of a licensed engineering firm.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.07)

N.H. Code Admin. R. Ann. Env-C 502.07 Firm {#sec-env-c-502.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.07}

“Firm” means a licensed engineering firm.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.08)

N.H. Code Admin. R. Ann. Env-C 502.08 Licensed engineering firm {#sec-env-c-502.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.08}

“Licensed engineering firm” means a business organization that holds a certificate of authorization from the board under RSA 310-A:20, reprinted in Appendix B.

History

#14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.09 Listed firm {#sec-env-c-502.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.09}

“Listed firm” means a firm that is on the roster.

History

#14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.10 New listing {#sec-env-c-502.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.10}

“New listing” means the inclusion on the roster of a firm that is not on the roster as of the date of the application, regardless of whether the firm has been on any past roster.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.11)

N.H. Code Admin. R. Ann. Env-C 502.11 Principal of the applicant {#sec-env-c-502.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.11}

“Principal of the applicant” means:

(a) For a general or limited partnership, one of the general partners;

(b) For a corporation, including limited liability corporations and professional corporations, the president or a vice president; and

(c) For any other business entity, the individual who has controlling authority or is otherwise equivalent to the chief executive officer.

History

#14060, eff 8-21-24 (formerly Env-C 502.12)

N.H. Code Admin. R. Ann. Env-C 502.12 Professional competence {#sec-env-c-502.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.12}

“Professional competence” means that:

(a) The firm is a multi-disciplinary licensed engineering firm that specializes in providing consulting engineering services for public water supply projects, public water pollution projects, or both as applicable to one or more of the categories set out in Env-503.04(b), below, for which prequalification is sought;

(b) The firm employs at least 2 full-time qualified project engineers as defined in Env-C 502.13 who have actively practiced engineering in each category for which prequalification is sought for at least the 5 years immediately prior to filing the application under this chapter;

(c) In the last 5 years, the firm and its qualified project engineers have not been subject to disciplinary action by the board for conduct or activities arising from the applicant’s work on projects in any category for which prequalification is sought;

(d) The firm and its qualified project engineers have not provided any false, incomplete, or misleading information as part of an application for an initial listing as specified in Env-C 503.01 or a renewal listing as specified in Env-C 503.05;

(e) In the last 5 years, the firm has not failed to appoint a qualified project engineer for the management of a water supply project or water pollution control project;

(f) In the last 5 years, the firm has not failed to fulfill the terms of an engineering services contract;

(g) In the last 5 years, the firm or its qualified project engineers have not engaged in unethical conduct as defined by the rules of conduct of the board;

(h) The firm has submitted all required renewal fees and updated engineer questionnaire forms;

(i) The firm is not the subject of a pending enforcement action taken by the department or by the NH department of justice; and

(j) The firm has complied with all terms and conditions of any orders, settlement agreements, consent decrees, or other similar documents issued by the department or resulting from an action initiated by the department or by the NH department of justice.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.13)

N.H. Code Admin. R. Ann. Env-C 502.13 Qualified project engineer {#sec-env-c-502.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.13}

“Qualified project engineer” means a professional engineer, as defined in RSA 310-A:2, II, reprinted in Appendix B, with a civil, environmental, or sanitary engineering designation who holds a bachelor’s degree in engineering and has:

(a) At least 7 years of relevant experience;

(b) One year of graduate study in engineering and 6 years of relevant experience; or

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.14)

N.H. Code Admin. R. Ann. Env-C 502.14 Qualifying project {#sec-env-c-502.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.14}

“Qualifying project” means a project on which a qualified project engineer worked that is represented by the as-built project plans and specifications that include the professional engineer (PE) stamp of the qualified project engineer submitted with an application to demonstrate the applicant’s capabilities to work in the category for which prequalification is sought.

History

#14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 502.15 Relevant experience {#sec-env-c-502.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.15}

“Relevant experience” means experience in the design, construction, inspection, and oversight of public water supply projects or public water pollution control projects, or both, as applicable to the category for which prequalification is sought.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.16)

N.H. Code Admin. R. Ann. Env-C 502.16 Renewal {#sec-env-c-502.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.16}

“Renewal” means the inclusion on the roster of a firm that is on the roster as of the date the renewal application is submitted.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.17)

N.H. Code Admin. R. Ann. Env-C 502.17 Roster {#sec-env-c-502.17 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 502.17}

“Roster” means the list maintained by the department that identifies the firms who have been prequalified pursuant to this chapter in the particular category for which the firms are prequalified.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 502.18)

Part Env-C 503 Roster: Initial Listing; Renewal; Debarment

N.H. Code Admin. R. Ann. Env-C 503.01 Requirements for New Listing {#sec-env-c-503.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.01}

An applicant for a new listing shall provide the following to the department:

(a) Complete and submit electronically the "NHDES Roster of Prequalified Licensed Engineering Firms Application - New and Renewals" form, NHDES-W-09-005, August 2024, available at https://onlineforms.nh.gov/?formtag=NHDES-W-09-005;

(b) At least one qualifying project per each qualifying project engineer, minimum 2 qualifying project engineers per each category for which the applicant is applying;

(d) Professional resumes for each qualifying project engineer listed;

(e) The application fee required by RSA 485-A:4, XIII, as reprinted in Appendix B;

(f) The firm’s certificate of good standing from the New Hampshire secretary of state; and

(g) The firm’s certificate of registration issued by the board pursuant to RSA 310-A:20 which authorizes the firm as an engineering services business organization in New Hampshire.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

N.H. Code Admin. R. Ann. Env-C 503.02 Signature Required {#sec-env-c-503.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.02}

(a) A principal of the applicant shall sign and date the prequalification application or renewal application, as applicable.

(b) The signature shall constitute certification that:

(1) The information on the application form is true, complete, and not misleading to the best of the applicant's knowledge and belief;

(2) The applicant acknowledges that the submission of false, incomplete, or misleading information is grounds for denying the application, renewal, or for revoking any roster listing that is made based on such information;

(3) If the applicant is added to or continued on the roster, the applicant will comply with Env-C 500, Eng 501, Env-Wq 500, Env-Wq 700, and Env-Dw 400 rules as applicable and all other applicable requirements relative to submittal of plans to the department for approval; and

(4) The applicant and its qualifying project engineers meet the criteria for professional competence, as defined in Env-C 502.12.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.03)

N.H. Code Admin. R. Ann. Env-C 503.03 Review of Applications for New Listing; Decisions {#sec-env-c-503.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.03}

(a) Upon receiving an application for a new listing, the department shall review it to determine whether it contains everything required by Env-C 503.01.

(b) If the submission does not contain everything required by Env-C 503.01, the department shall notify the applicant within 15 calendar days of what is missing.

(c) The department shall review each application for a new listing within 30 calendar days of receipt of a complete application.

(d) The department shall approve the application for a new listing if, based on the information provided by the applicant or otherwise available to the department:

(1) The applicant and its qualifying professional engineers demonstrate professional competence in each category for which prequalification is sought; and

(2) The department is not aware of any basis for debarment as specified in Env-C 503.07.

(e) If the department denies the application, the written notice shall specify the reason(s) for the denial.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.04)

N.H. Code Admin. R. Ann. Env-C 503.04 Roster {#sec-env-c-503.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.04}

(a) The department shall:

(1) Maintain a current roster; and

(2) Publish the current roster on its website.

(b) The roster shall list the firms as being prequalified for one of the following 4 categories:

(1) Category 1, water supply engineering, including water treatment;

(2) Category 2, water pollution control engineering, including wastewater treatment;

(3) Category 3, water or wastewater piping systems, including pumping; and

(4) Category 4, all of the foregoing 3 categories.

(c) The categories above are broad and as such listed firms shall act ethically and only accept and perform work in which its qualifying project engineers have demonstrated professional competence.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.05)

N.H. Code Admin. R. Ann. Env-C 503.05 Duration of Listing; Renewal Application {#sec-env-c-503.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.05}

(a) A firm whose application for a new listing is approved shall be listed on the roster for the time period specified in table 503-1, below:

Table 503-1: Duration of New Listing

Application Approved:

Listing Valid For:

January 1 through June 30

Remainder of calendar year in which approved

July 1 through December 31

Through December 31 of calendar year following year of approval

(b) To remain on the roster, a listed firm shall provide the following to the department, by October 31 of the year in which its listing will expire:

(1) Complete and submit electronically the "NHDES Roster of Prequalified Licensed Engineering Firms Application - New and Renewals" form, NHDES-W-09-005, August 2024, available at https://onlineforms.nh.gov/?formtag=NHDES-W-09-005;

(2) The renewal fee required by RSA 485-A:4, XIII, as reprinted in Appendix B;

(3) The firm’s certificate of good standing from the New Hampshire secretary of state; and

(4) The firm’s certificate of registration issued by the board pursuant to RSA 310-A:20 which authorizes the firm as an engineering services business organization in New Hampshire.

(c) If the firm is seeking to be pre-qualified in an additional category, a new application shall be submitted in accordance with Env-C 503.01, above.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.06)

N.H. Code Admin. R. Ann. Env-C 503.06 Review of Applications for Renewal Listing; Decisions {#sec-env-c-503.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.06}

(a) Upon receiving an application to renew a listing, the department shall review it to determine whether it contains everything required by Env-C 503.05.

(b) If the submission does not contain everything required by Env-C 503.05 the department shall notify the applicant in writing within 15 calendar days of what is missing.

(c) The department shall review each application to renew a listing within 30 calendar days of receipt of a complete application to renew a listing.

(d) The department shall renew the applicant’s listing if:

(1) The information submitted by the applicant demonstrates that the applicant continues to be qualified to be listed on the roster; and

(2) The department is not aware of any basis for debarment as specified in Env-C 503.07.

(e) If the department becomes aware of any basis for debarment as specified in Env-C 503.07 after receiving a renewal application but prior to making a decision on the application, the department shall refuse to renew the applicant on the roster.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.08)

N.H. Code Admin. R. Ann. Env-C 503.07 Debarment {#sec-env-c-503.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.07}

(a) Any listing on the roster shall be based on the presumptions that:

(1) The information submitted to obtain the listing remains true, complete, and not misleading; and

(2) The applicant and its qualifying project engineers continue to meet the criteria for professional competence as specified in Env-C 502.12.

(b) After listing a firm on the roster, if the department receives information indicating that the information upon which the listing was based was false, incomplete, or misleading or that the firm no longer meets the criteria of Env-C 502.12, the department shall initiate an adjudicative proceeding pursuant to the applicable provisions of RSA 541-A and Env-C 200 to determine whether the firm should be debarred or suspended from being listed.

(1) The firm would not have been listed on the roster if the information submitted had been true, complete, and not misleading because information that was true, complete, and not misleading would not have supported a finding that the applicant met the criteria for professional competence; and

(2) The firm cannot cure the deficiencies so as to demonstrate professional competence.

(d) The department shall remove the firm from the roster subject to reinstatement as specified in (f), below, if the department determines that:

(1) The firm would have been listed on the roster if the information submitted had been true, complete, and not misleading because information that was true, complete, and not misleading would have supported a finding that the applicant met the criteria for professional competence; and

(2) The firm can cure the deficiencies so as to demonstrate professional competence.

(e) The department shall notify the firm in writing of its decision. If the decision is to suspend, revoke, or refuse to renew the listing, the department shall specify the reason(s) for the decision.

(f) If a listing is suspended pursuant to (d), above, the department shall reinstate the firm on the roster upon receiving proof from the firm that it can demonstrate professional competence.

(g) Any firm debarred pursuant to this section may apply to be listed on the roster no sooner than 3 years from the date of debarment

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.09)

N.H. Code Admin. R. Ann. Env-C 503.08 Appeal {#sec-env-c-503.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 503.08}

(a) Any firm whose application for a new listing is denied may appeal the decision as a permitting decision under RSA 21-O:14.

(b) Any listed firm that is debarred or suspended pursuant to Env-C 503.07 may appeal the decision as an enforcement decision under RSA 21-O:14.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24 (formerly Env-C 503.10)

Part Env-C 504 Procurement of Engineering Services for Certain Projects

N.H. Code Admin. R. Ann. Env-C 504.01 Procedures {#sec-env-c-504.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 504.01}

The procedures for procuring engineering services for projects that obtain state or federal funding for a water supply project or a water pollution control project shall be as specified in:

(a) Env-Dw 1100 for water supply projects; and

(b) Env-Wq 500 for water pollution control projects.

Appendix A: Statutes Implemented

Rule Section(s)

State Statute(s) Implemented

Env-C 500

RSA 485-A:4, XIII

Appendix B: Relevant Statutes

RSA 485-A:4 Duties of Department. – It shall be the duty of the department and the department is authorized:

…

XIII. To establish rules governing the prequalification of consulting engineering firms employed in the planning and construction of public water supply and pollution control projects. Any licensed engineering firm seeking initial prequalification shall pay to the department a fee of $200. Prequalification shall be renewed annually and shall be accompanied by a $50 renewal fee. These fees shall be deposited with the state treasurer as unrestricted revenue. The department is further empowered to prescribe the contract award procedures to be followed in the awarding of construction contracts involving state financial assistance.

RSA 310-A:2 Definitions. – As used in this subdivision:

…

I-a. "Business organization" means any enterprise, whether corporation, partnership, limited liability company, proprietorship, association, business trust, real estate trust, or other form of organization; organized for gain or profit, carrying on any business activity within the state.

II. "Professional engineer" means a person who by reason of advanced knowledge of mathematics and the physical sciences, acquired by professional education and practical experience, is technically and legally qualified to practice engineering, and who is licensed by the board or otherwise authorized by this subdivision to engage in the practice of engineering.

RSA 310-A:18 Certificates; Seals. – The board shall issue a license, upon payment of the registration fee established by the office of professional licensure and certification, to any applicant who, in the opinion of the board, has satisfactorily met all the requirements of this subdivision. Licenses shall show the full name of the licensee and have a serial number. The issuance of a license by the board shall be prima facie evidence that the person named in the license is entitled to all the rights and privileges of a licensed professional engineer while the license remains valid. Each licensee shall upon licensure obtain a seal of the design authorized by the board, bearing the registrant's name and the legend, "Licensed Professional Engineer.'' All papers or documents involving the practice of engineering under this subdivision, when issued or filed for public record, shall be dated and bear the signature and seal of the licensed professional engineer who prepared or had responsibility for and approved them. It shall be a class B misdemeanor for the licensee to stamp or seal any documents with such seal after the license of the licensee has expired or has been revoked, unless such license shall have been renewed or reissued.

RSA 310-A:20 Engineering Certificates for Business Organizations. –

I. The practice of or offer to practice professional engineering for others by individual engineers licensed under this subdivision through a business organization as officers, partners, associates, employees, or agents is permitted, subject to the provisions of this subdivision; provided that:

(a) One or more of the corporate officers, of a corporation or one or more general partners, or associates is designated as being responsible for the engineering activities and engineering decisions of the business organization, and is a licensed engineer under this subdivision.

(b) All personnel of the business organization who act in its behalf as professional engineers are licensed under this subdivision.

II. The requirements of this subdivision shall not affect a business organization or its employees in performing services for such business organization or its subsidiary or affiliated business organizations. All final drawings, specifications, plans, reports, or other engineering papers or documents involving the practice of engineering, when issued or filed for public record, shall be dated, and bear the signature and seal of the professional engineer who prepared them or under whose direct supervisory control they were prepared.

III. A business organization desiring a certificate of authorization shall file with the board an application, using a form provided by the board, listing the names and addresses of all officers and board members, general and limited partners, associates, and any individuals duly licensed to practice engineering in this state who shall be in responsible charge of the practice of engineering in this state through the business organization, and any other information required by the board. The same form, giving the same information, must accompany the annual renewal fee. If there is a change in any of these persons during the year, such change shall be designated on the same form and filed with the board within 30 days after the effective date of such change. If all requirements of this section are met, the board shall issue a certificate of authorization to such business organization, and such business organization shall be authorized to contract for and to collect fees for furnishing engineering services.

IV. No business organization shall be relieved of responsibility for the conduct or acts of its agents, employees, officers, or partners, by reason of its compliance with the provisions of this section, nor shall any individual practicing engineering be relieved of responsibility for engineering services performed by reason of such individual's employment by or relationship with such business organization.

V. The secretary of state shall not issue a certificate of incorporation to an applicant for incorporation or for registration as a foreign business organization which includes the words "Engineer'' or "Engineering'' or any modification or derivative thereof in its corporate or business name or which includes the practice of engineering among the objects for which it is established unless the board shall have issued, with respect to such applicant, a certificate of authorization or eligibility for authorization, a copy of which shall have been presented to the secretary of state. Similarly, the secretary of state, after a reasonable transition period, shall decline to register any trade name or service mark which includes such words or modifications or derivatives thereof in its firm or business name except to partnerships, sole proprietorships and associations holding certificates of registration or authorization issued under the provisions of this subdivision, a copy of which shall likewise have been presented to the secretary of state. However, the requirements of this subdivision shall not apply to any business formed and registered with the secretary of state prior to January 1, 1999, which uses the words "Engineer'' or "Engineering'' or any modification or derivative thereof in its corporate or business name, and which does not perform or require the services of a professional engineer.

VI. A professional engineer who renders occasional, part-time or consulting engineering services to or for a business organization may not, for the purposes of this subdivision, be designated as being responsible for the engineering activities and decisions of such business organization.

History

(See Revision Note at chapter heading for Env-C 500) #10644, eff 7-22-14; ss by #14060, eff 8-21-24

Part Env-C 801 Purpose and Applicability

N.H. Code Admin. R. Ann. Env-C 801.01 Purpose {#sec-env-c-801.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 801.01}

The purpose of this chapter is to establish the requirements and process for requesting results from the DataCheck Tool pursuant to RSA 217-A:7 and for obtaining an ecological review from the department pursuant to RSA 217-A:7 or RSA 212-A:9.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 801.02 Applicability {#sec-env-c-801.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 801.02}

This chapter shall apply to any person, entity, or governmental unit who is:

(a) Requesting information from the DataCheck Tool; or

(b) Requesting an ecological review from the department pursuant to RSA 212-A or RSA 217-A.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

Part Env-C 802 Definitions

N.H. Code Admin. R. Ann. Env-C 802.01 Applicant {#sec-env-c-802.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.01}

“Applicant” means a person, entity, or governmental unit who requests information using the DataCheck Tool or requests an ecological review.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.02 Appreciably jeopardize the continued existence {#sec-env-c-802.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.02}

“Appreciably jeopardize the continued existence” means “appreciably jeopardize the continued existence” as defined in Fis 1002.04.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.03 Avoid {#sec-env-c-802.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.03}

“Avoid” means designing a project so that harm to protected species or their habitat is avoided to the maximum extent practicable.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.04 Commissioner {#sec-env-c-802.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.04}

“Commissioner” means the commissioner of the department of environmental services.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.02), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.05 Conservation measures {#sec-env-c-802.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.05}

“Conservation measures” means actions which serve to avoid, minimize, or mitigate harm to, and to promote the recovery of or enhance the survival of, protected species, exemplary natural communities, and critical habitat, including but not limited to:

(a) Design modifications to proposed actions to protect species from harm;

(b) Modifications to proposed actions such as alteration of the timing of proposed actions to protect species from harm;

(c) Design of crossing structures to maintain and enhance habitat quality, habitat connectivity, and accommodate movement of species;

(d) Education and training for construction personnel as to what construction activities have the potential to cause harm to species;

(e) Signage to identify specific locations where construction activities must avoid harm to species;

(f) Continued research and monitoring of identified species;

(g) Protection or restoration of wildlife corridors;

(h) Maintenance, enhancement, or protection of habitat buffer areas; and

(i) Habitat protection, management, or restoration.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.03), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.06 Critical habitat {#sec-env-c-802.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.06}

“Critical habitat” means habitat of endangered or threatened species of wildlife designated by the executive director of the New Hampshire fish and game department as critical in accordance with to RSA 212-A:9, III.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.04), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.07 DataCheck Tool {#sec-env-c-802.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.07}

“DataCheck Tool” means an online data screening tool used to screen for known locations of protected species, critical habitat, and exemplary natural communities.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.05), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.08 DataCheck Tool results letter {#sec-env-c-802.08 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.08}

“DataCheck Tool results letter” means the document issued by the department with the results to an applicant’s request for a screening of the DataCheck Tool.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.06), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.09 Department {#sec-env-c-802.09 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.09}

“Department” means the department of environmental services.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.07), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.10 Ecological review {#sec-env-c-802.10 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.10}

“Ecological review” means an environmental review by the department of potential impacts to protected species, critical habitat, and exemplary natural communities to enable planning, permitting, and funding.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.08), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.11 Exemplary natural community {#sec-env-c-802.11 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.11}

“Exemplary natural community” means “exemplary natural community” as defined in RSA 217-A:3, VII, namely “a viable occurrence of a rare natural community type or a high quality example of a more common natural community type as designated by the natural heritage bureau based on community size, ecological condition, and landscape context.”

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.09), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.12 Harm {#sec-env-c-802.12 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.12}

“Harm” means any act which kills or injures individuals of a threatened or endangered wildlife species, or which acts to significantly adversely modify or degrade the habitat supporting the species by interfering with breeding, hibernation, reproduction, feeding, sheltering, migration, or overwintering behaviors that are a part of the species’ normal or traditional life cycle and that are essential to its survival and perpetuation.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.13 Minimize {#sec-env-c-802.13 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.13}

“Minimize” means using protective measures to reduce potential harm that could remain after all practicable measures have been taken to avoid harm to protected species or their habitat.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.14 Natural community {#sec-env-c-802.14 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.14}

“Natural community” means an interactive assemblage of organisms, their physical environment, and the natural processes that affect them.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.11), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.15 Protected plant species {#sec-env-c-802.15 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.15}

“Protected plant species” means any species designated as endangered or threatened under Ncr 312.02 or Ncr 312.03.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.12), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.16 Protected species {#sec-env-c-802.16 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.16}

“Protected species” means both protected plant species and protected wildlife species.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.13), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 802.17 Protected wildlife species {#sec-env-c-802.17 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 802.17}

“Protected wildlife species” means any species designated as endangered or threatened under Fis 1001.01 and Fis 1001.02 pursuant to RSA 212-A.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 802.14), eff 1-19-26, EXPIRES 1-19-36

Part Env-C 803 Datacheck Tool Requests

N.H. Code Admin. R. Ann. Env-C 803.01 When A DataCheck Tool Screening Request Is Required {#sec-env-c-803.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.01}

(a) In order to meet its obligation in RSA 217-A:7 or RSA 212-A:9, III, a state agency shall submit a DataCheck Tool screening request to the department for any projects carried out by that state agency that involve changes in land use or which could otherwise impact protected species, exemplary natural communities, or critical habitat.

(b) A person, entity, or governmental unit shall submit a DataCheck Tool request if required by the administrative rules of a state agency as part of a permitting, funding, or other authorization process.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 803.02 Confidentiality {#sec-env-c-803.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.02}

(a) A person, entity, or governmental entity shall only have the ability to request a screening to receive a DataCheck Tool results letter if that person, entity, or governmental unit has:

(1) A legal right to the property about which the request is made; or

(2) Permission of the property owner.

(b) Any person, entity, or governmental unit eligible per (a), above, may request a screening to receive a DataCheck Tool results letter even if not required to do so pursuant to Env-C 803.01.

(c) The confidentiality of the data regarding protected species, critical habitat, and exemplary natural communities shall be maintained by the department and any applicant.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 803.03 DataCheck {#sec-env-c-803.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.03}

Tool Requests.

(a) To request results from the DataCheck Tool, each applicant shall submit to the department:

(1) A complete form either electronically using the online screening tool at https://www4.des.state.nh.us/NHB-DataCheck/ or in writing using the "DataCheck Tool Request" form, NHDES-W-11-001, January 2026, available at: https://onlineforms.nh.gov/?formtag=NHDES-W-11-001;

(2) A map that sufficiently shows the project site location, project size, and property boundaries if not submitted on the online mapping tool; and

(3) The fee required pursuant to (c), below, along with the corresponding identification number (DCT ID#) from completion of the form using the online screening tool, as applicable.

(b) Written requests and other required information not submitted online shall be emailed, mailed, or hand-delivered to:

Department of Environmental Services

Ecological Review Section

P.O. Box 95

29 Hazen Drive

Concord, New Hampshire 03302-0095

EcologicalReviews@des.nh.gov

Table 803-1 DataCheck Tool Request Fees

DataCheck Request, Online Screening Tool (Records Found)

$50

DataCheck Request, Online Screening Tool (No Records Found)

No fee

DataCheck Request, No Online Mapping Tool (Map Mailed or Emailed)

$50

Hardcopy Request

$50

(d) Except as allowed in (e), below, a DataCheck Tool request shall be considered administratively complete when the department has received all of the information required by (a), above.

(e) A DataCheck Tool request from a state or federal agency shall be considered administratively complete when the department has received the information required by (a)(1) and (2), above, and information regarding how and when the department will receive the required fee per (c), above.

(f) After receiving a DataCheck Tool request letter, applicants shall qualify to receive additional information about critical habitats, exemplary natural communities, or protected species listed in the DataCheck Tool results letter, as applicable, only if the request is submitted in writing to the department at the contact information listed in (b), above, and the applicant signs a written document agreeing not to disclose any additional information provided by the department other than as necessary for completion of the project.

(g) The department shall not provide an applicant with the exact location data of known occurrences of threatened and endangered species due to not having the authority to do so. The only agencies with authority to release the exact location data are the natural heritage bureau within the department of natural and cultural resources for species and the non-game program within the fish and game department.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 803.04 Processing DataCheck Tool Requests {#sec-env-c-803.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.04}

(a) The department shall not process a DataCheck Tool request until the request is administratively complete pursuant to Env-C 803.03.

(b) The department shall review the information provided and assess any potential impacts on protected species, exemplary natural communities, or critical habitat based on available data.

(c) Upon receipt of an administratively complete request per Env-C 803.03, the department shall issue the DataCheck Tool results letter to the applicant within 15 days containing the following information:

(1) A list of the known occurrences of protected species, exemplary natural communities, or critical habitat;

(2) Any recommended conservation measures for protected species, critical habitat, or exemplary natural communities if the department is able to do so without the need for a full ecological review;

(3) Notification of the information that needs to be submitted to complete an ecological review pursuant to Env-C 804; and

(4) Whether a site survey by a qualified botanist, qualified wildlife biologist, certified wetlands scientist, or other qualified professional needs to be completed prior to requesting an ecological review.

History

#14374, INTERIM, eff 8-26-25; ss by #14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 803.05 Clarification of Recommended Conservation Measures in DataCheck Tool Results Letter {#sec-env-c-803.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.05}

An applicant who has received a DataCheck Tool results letter containing recommended conservation measures has the option of requesting an ecological review pursuant to Env-C 804 to obtain different recommendations.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 803.06 Validity of the DataCheck Tool Results Letter {#sec-env-c-803.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 803.06}

A DataCheck Tool results letter shall expire one year from the date of issuance.

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 803.05), eff 1-19-26, EXPIRES 1-19-36

Part Env-C 804 Ecological Reviews for Protected Species, Exemplary Natural Communities, and Critical Habitat

N.H. Code Admin. R. Ann. Env-C 804.01 When An Ecological Review Is Required {#sec-env-c-804.01 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.01}

(a) An ecological review is required if the DataCheck Tool results letter indicates that a review is needed and:

(1) The project is funded or carried out by any state agency, pursuant to RSA 217-A:7;

(2) The project is funded or carried by the department, pursuant to RSA 212-A:9, III;

(3) Any administrative rules promulgated pursuant to RSA 482-A, RSA 485-A, or RSA 236 require such a review; or

(4) The administrative rules of the department require such a review for a permit, approval, or other written authorization issued by the department.

(b) An ecological review is not required if:

(1) The DataCheck Tool results letter indicates either no records were found or no review is required based on the described project;

(2) The department indicates in the DataCheck Tool results letter that the list of conservation measures included is complete and no further review is necessary; or

(3) The applicant is no longer proceeding with the proposed project.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.02 Ecological Review Requests {#sec-env-c-804.02 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.02}

(a) No applicant shall request an ecological review from the department unless a DataCheck Tool request has been made and a valid DataCheck Tool results letter has been received.

(b) The department shall accept a DataCheck Tool results letter previously issued by the natural heritage bureau if:

(1) It was issued within one year of the submission of a request for an ecological review; and

(2) It was issued for the same project site, project description, and project size, and the permits listed in the request for the DataCheck Tool results remain the same.

(c) Subject to (d), below, there shall be a fee of $500 for ecological reviews required pursuant to Env-C 804.01 for the following projects:

(1) Projects that will disturb an area greater than 250,000 square feet as reported on the request form referenced in (f)(1), below;

(2) Linear projects longer than one mile in length; and

(3) Segmented projects with segments of any size separated by one mile or more.

(d) There shall be no fee for:

(1) Applicants who are not required to proceed with the ecological review pursuant to Env-C 804.01;

(2) Applicants that only need an ecological review for the purposes of applying for a minimum impact project pursuant to RSA 482-A;

(3) Applicants requesting an ecological review pursuant to Env-C 803.05; or

(4) Any state agency that has a memorandum of understanding or agreement with the department regarding the cost of ecological reviews.

(e) If the DataCheck results letter indicated, pursuant to Env-C 803.04(c)(4), that a site survey is required, the applicant shall not submit a request for an ecological review until the site survey and corresponding report are complete, unless the applicant contacts the ecological review section at the department and obtains permission to proceed without a site survey based on the applicant providing justification for why a site survey would not provide information relevant to the ecological review.

(f) To proceed with an ecological review pursuant to (c) or (d), above, the applicant shall submit to the department the following information:

(1) A complete "Ecological Review Request" form, NHDES-W-11-002, January 2026, available at: https://onlineforms.nh.gov/?formtag=NHDES-W-11-002;

(2) The information indicated in the DataCheck Tool results letter as needing to be submitted, if applicable;

(3) A detailed written description of the proposed project including but not limited to purpose and proposed land alterations and actions, information about the area to be affected by the project, the activities that require permits or other authorizations, the current status of the project site, any known previous alterations of the site, and any remaining features;

(4) Site photographs that are an example of current conditions with dates and a photograph location plan, showing existing conditions, habitat features, and possible locations of identified threatened and endangered species, if known;

(5) Whether any portion of the project has already begun or been completed;

(6) Any required fee in (c), above, if applicable;

(7) A topographic map identifying the project area at a scale of 1:24,000 or closer, and which shows property lines and the limits of proposed disturbance;

(8) An aerial photograph identifying the current condition of the action area at a scale of 1:24,000 or closer and which shows property lines and the limits of proposed disturbance;

(9) Project site plan sheets showing the area of proposed disturbance, habitat features on the property, location of any proposed new or modified structures, and any delineated wetland or surface waters, along with the estimated total square feet of disturbance;

(10) Any reports created to assess the site, including but not limited to wetland assessments, vernal pool surveys, wildlife or plant surveys, and other site visit observations;

(11) Any other available information, from whatever source, that describes the potential harm of the proposed action on listed species or habitat; and

(12) The conservation measures proposed by the applicant, if known.

(g) Unless an online option is provided by the department, requests shall be submitted by email, mail, or hand-delivery to:

Department of Environmental Services

Ecological Review Section

P.O. Box 95

29 Hazen Drive

Concord, New Hampshire 03302-0095

EcologicalReviews@des.nh.gov

History

#14374, INTERIM, eff 8-26-25; ss by #14473 (formerly Env-C 804.01), eff 1-19-26, EXPIRES 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.03 Processing Requests for Ecological Review {#sec-env-c-804.03 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.03}

(a) The department shall deem a request for an ecological review to be administratively complete when all of the information required pursuant to Env-C 804.02 has been received.

(b) If the department receives a request that is not administratively complete, the department shall send the applicant written notice of the deficiencies and that the request shall be closed if the additional information is not received within 60 days.

(1) Request additional information from the applicant necessary to complete its review; and

(2) Issue an ecological review decision pursuant to Env-C 804.04 and Env-C 804.05.

(d) The time it takes the applicant to respond to a request for additional information pursuant to (c)(1), above, shall not count towards the 60-day timeline in (c), above.

(e) The time for the department to complete the review shall only be extended with written authorization from the applicant.

(f) An applicant shall have 180 days to provide the information requested pursuant to (c)(1), above. The time for responding to a request for additional information shall be extended an additional 180 days if the applicant submits a written request for a time extension prior to the expiration of the deadline. More than one time extension shall be granted if the applicant demonstrates good cause, as defined in (g), below. The department shall close the ecological review request if the requested additional information is not provided within any allowed time limit.

(g) Good cause to extend an applicant’s deadline to provide additional information shall be deemed to exist if:

(1) In order to submit the missing component(s) or additional information, the applicant requires information from a third party not under the applicant’s control, and the applicant has not received the information despite making diligent efforts to obtain it; or

(2) The applicant has otherwise been prevented by circumstances beyond the applicant’s control from obtaining or preparing the missing component(s) or additional information.

(h) Once an ecological review request is closed by the department pursuant to (b) or (f), above, the applicant shall submit a new request if an ecological review is still required.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.04 Ecological Review Decisions Under RSA 217-A {#sec-env-c-804.04 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.04}

The department shall issue an ecological review decision containing the conservation measures necessary to prevent violations of RSA 217-A:7 and RSA 217-A:9.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.05 Ecological Review Decisions Under RSA 212-A {#sec-env-c-804.05 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.05}

(a) Pursuant to RSA 212-A:9, III, the department shall review the information submitted by the applicant to determine whether the activities in the proposed project:

(1) Are designed to avoid, minimize, and mitigate harm to threatened and endangered wildlife species and critical habitat, including a violation of RSA 212-A:7; and

(2) Will not appreciably jeopardize the continued existence of a threatened or endangered wildlife species or result in the destruction or modification of critical habitat of such species.

(b) The department shall issue an ecological review decision containing:

(1) The conservation measures recommended to meet the standard in (a), above, or indicating whether the project will not meet the standard in (a), above, even with conservation measures; and

(2) Any conservation measures recommended to prevent violations of RSA 212-A, RSA 209:8, RSA 209:9, Fis 1401.02, Fis 1401.03, and RSA 217-A.

(c) If the department does not complete the ecological review and issue the ecological review decision within the timelines required in Env-C 804.03, the applicant may proceed with the project as proposed, including with the proposed conservation measures. Applicants shall ensure compliance with state law protecting wildlife and plants, including but not limited to RSA 212-A:7, RSA 209:8, RSA 209:9, and RSA 217-A:9.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.06 Amendments to an Ecological Review Decision {#sec-env-c-804.06 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.06}

(a) An applicant who has received an ecological review decision may request an amendment to that decision by submitting a written request to the ecological review section of the department using the contact information in Env-C 804.02(g).

(b) Requests for an amended ecological review decision shall be processed the same as a voluntary request for an ecological review, with no additional fee required.

History

#14473, eff 1-19-26, EXPIRES: 1-19-36

N.H. Code Admin. R. Ann. Env-C 804.07 Validity of an Ecological Review Decision {#sec-env-c-804.07 omnilex-key=us-nh-regs-official--agency-env-c--Env-C 804.07}

(a) Any ecological review decision issued by the department shall be issued based on the presumption that the information submitted as part of the application is true, complete, and not misleading.

(b) If, after the issuance of the ecological review decision, the department receives information indicating that information material to an ecological review decision was not true and complete or was misleading, the department shall notify the applicant in writing that the issued ecological review decision is no longer valid.

(1) Submit a new request for an ecological review if one is needed to obtain a permit, authorization, funding, or other approval; or

(2) If a permit, authorization, funding, or other approval was received based on the invalid ecological review decision, notify the entity that issued the permit, authorization, funding, or other approval.

Appendix A: State Statutes Implemented

Rule Section(s)

State Statute(s) Implemented

Env-C 800

RSA 217-A:7

Env-C 801

RSA 217-A:7; RSA 212-A:9

History

#14473, eff 1-19-26, EXPIRES: 1-19-36