Certified Final Objection No. 106 of the

Joint Legislative Committee on Administrative Rules

At its meeting on January 22, 1999, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 98-183 containing proposed rules Env-Wm 1403 of the Department of Environmental Services (Department) relative to groundwater management and groundwater release detection permits. The Department responded by letter dated February 17, 1999.

At its meeting on February 19, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-183. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committee’s final objection:

Env-Wm 1403

The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Env-Wm 1403 is beyond the authority of the Department, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states that:

The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

The Committee further noted that the rules appear to require that the political subdivisions of the state comply with the provisions contained in Env-Wm 1403. The Committee noted that the rules implement statutory provisions enacted after the effective date of Art. 28-a. The Committee also noted that the rules have been amended that such amendments could increase the costs of compliance for political subdivisions. Thus, to the extent that the exemption stated in Env-Wm 1403.29 does not apply and political subdivisions will be required to comply with provisions that have been adopted or amended since the effective date of Art. 28-a in such a way as to increase the cost of compliance therewith, the Committee concluded that, where ever they may be found, such provisions in the rules conflict with Art. 28-a.

Env-Wm 1403.29

The Committee objected that Env-Wm 1403.29 violates Committee rules 401.04 and 403.01(d) by being beyond the authority of the Commissioner to the extent that Env-Wm 1403.29 conflicts with Part 1, Article 28-a of the New Hampshire Constitution, and by being contrary to the public interest by not being clear and understandable.

This section governs compliance with the rules by political subdivisions. Paragraph (a) sets forth a purpose statement, a recommendation, and a limitation on the effect of paragraph (b). Paragraph (b) sets forth conditions for exemption from compliance with certain requirements by political subdivisions.

Paragraph (b) provides that political subdivisions are, pursuant to Art. 28-a, exempt from compliance with certain requirements in Env-Wm 1403. However, (b)(4) provides that a political subdivision shall not be exempt if the requirement "implements a federal statute or regulation with which the political subdivision would otherwise be required to comply by the federal government." The Committee noted that this language appears to be consistent with RSA 541-A:26, which is relative to administration of federal mandates. Similarly, the Department argued that when administering a federal mandate, the state was only acting as the agent of the federal government, and therefore such action does not constitute "state" action.

The Committee noted that Art. 28-a is a prohibition against state action that results in increased costs for compliance by political subdivisions. The Committee observed that when administering a federal mandate, a state agency uses a state rulemaking process and is subject to state legislative oversight. Further, if the state agency seeks to enforce the provisions of the state administrative rules, it does so in a state administrative process governed by state administrative rules, is empowered to collect state administrative fines to be deposited in the state’s coffers, and any appeals to be taken from such state administrative actions are taken to state courts. Finally, the Committee noted that there is nothing in Art. 28-a that indicates that unfunded mandates that are federally-driven should be treated any differently than any other unfunded mandate.

The limitation in paragraph (a) states that "regardless of any exemption(s) from specific requirements of these rules pursuant to paragraph (b), below, all entities that engage in the activities regulated by these rules remain fully responsible for complying with all applicable statutes, such as those which prohibit the discharge of pollutants to groundwater."

The Committee indicated that the language seemed to override the exemption provided for in paragraph (b), despite the fact that the provisions in (b)(1) – (3) reflect the substance of Art. 28-a. The Committee concluded that, consistent with Art. 28-a, unless any of the statements in (b)(1) – (3) were true, the political subdivision be exempt from compliance with any new, modified, or expanded program or responsibility. Therefore, the Committee determined that there was no authority to override the constitutionally-based exemption stated in subparagraphs (b)(1) – (3).

The Committee also indicated that it was not certain what was intended by the phrase "fully responsible" in this context. In the Committee’s view, this language could be read to mean that the Department intends to bring enforcement actions against political subdivisions even for violation of statutes that are not applicable to such political subdivisions by operation of Art. 28-a. In testimony before the Committee, the Department’s representative indicated that this sentence was intended to be a "gentle reminder" that political subdivisions violate statutory provisions at their own peril.

Putting aside the issue of whether it was appropriate for the Department to make such a statement in its rules, the Committee determined that the explanation did not seem to be consistent with the language of the provision. The Department indicated that the rules implement RSA 485-C and RSA 147-F. The Committee noted that Env-Wm 1403.29(a) requires compliance with all applicable statutes, including those which were enacted after November 28, 1984, the effective date of Art. 28-a. The Committee concluded this because RSA 485-C became effective on June 28, 1991, more than 6 years after Art. 28-a became effective and RSA 147-F became effective in 1996, more than 12 years after Art. 28-a became effective. In the Committee’s view, there would have been no reason to include the language from paragraph (a) quoted above unless it was specifically intended to apply to RSA 485-C and 147-F. Thus, the Committee determined that the language was more than a "gentle reminder" and was, in fact, a statement indicating the Department’s intent to enforce statutes and rules without regard to Art. 28-a.