Certified Final Objection No. 108 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 18, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-106 containing proposed rules Env-Ws 800 of the Department of Environmental Services (Department) relative to sludge management. The Department responded by letter dated February 1, 1999.

At its meeting on March 19, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-106. 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-Ws 806.08(o) and (p)

The Committee objected that Env-Ws 806.08(o) and (p) are contrary to legislative intent, pursuant to Committee rule 402.02(a), by violating certain statutes, as set forth below.

Env-Ws 806.08(o) establishes a table listing buffer areas around various objects, subject to certain exceptions or conditions stated in Env-Ws 806.08(p). Env-Ws 806.08(o) prohibits the application or storage of sludge within the established buffer areas. Pursuant to the rule, no person shall apply sludge to land within 125 feet of surface water. The Committee noted that RSA 483:9-a, VII, RSA 483:9-aa, VII, and RSA 483:9-b, VII, (which, respectively, apply to rural rivers, rural-community rivers and community rivers) each require a buffer distance of 250 feet. It was the Committee’s determination that the Env-Ws 806.08(o) conflicts with these statutes by establishing a smaller buffer distance.

The Committee noted that Env-Ws 806.08(p)(1) allows the buffer distance between surface water and land-applied sludge to be reduced from 125 feet to 75 feet, under specified circumstances, "unless otherwise required by RSA 483, New Hampshire rivers management and protection program" [emphasis added]. From the testimony on the proposal, it appeared to the Committee that this exception for RSA 483 might have been intended to apply wherever Env-Ws 806.08(o) and (p) specified a buffer distance of less than 250 feet and the surface water involved falls under the protection of RSA 483. However, the Committee determined that, as worded, the exception in (p)(1) regarding RSA 483 only applies to the reduction from 125 feet to 75 feet.

Pursuant to the table in Env-Ws 806.08(o), no person shall store sludge within 250 feet of surface water. Under Env-Ws 806.08(p)(8), this buffer distance is reduced to 125 feet when specific physical conditions exist. The Committee determined that RSA 483:9-a, VII, RSA 483:9-aa, VII, and RSA 483:9-b, VII, require a minimum buffer of 250 feet, regardless of whether the sludge is being applied or stored. Therefore, the Committee determined that without an exception for RSA 483, Env-Ws 806.08(p)(8) conflicts with the cited statutes.

Part 1, Article 28-a

The Committee objected that Env-Ws 800 violates Committee rules 401.04 and 402.04 by being beyond the authority of the Commissioner and contrary to legislative intent to the extent that Env-Ws 800 conflicts with Part 1, Article 28-a of the New Hampshire Constitution.

Pt. 1, Art. 28-a of the New Hampshire Constitution (28-a) provides 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.

Based on the written submissions of Judy Silva of the New Hampshire Municipal Association (to Commissioner Varney, dated August 31, 1998, and to the Committee, dated December 18, 1998), and Shelagh Connelly of White Mountain Resource Management, Inc. (to the Committee, dated February 19, 1999), the Committee determined the proposal contains new, modified or expanded requirements that, if implemented, will necessitate increased expenditures by political subdivisions that operate wastewater treatment facilities (WWTF).

The Department has not denied that the proposed rules contain new, modified or expanded programs or responsibilities which necessitate further expenditures. It was the Committee’s opinion that the Department does deny that there is a mandate or a cost to political subdivisions. In its statement relative to 28-a submitted with the initial proposal, the Department indicated that the proposed rules do not violate 28-a:

because local legislative bodies which fund the operation of

a wastewater treatment facility must appropriate money for

sludge disposal/management. Therefore, municipalities which

choose to manage their sludge in a manner which makes them

subject to the proposed rule have voted to approve funding

for that purpose. Funding for operation of municipal waste-

water and sludge facilities is raised from sewer user fees and

not from general taxation.

The Committee agreed with Ms. Silva in interpreting the statement as expressing the position that if a political subdivision has chosen to have a WTTF, it has chosen to accept any mandates which might be adopted relative to that facility. Ms. Silva indicated that this position conflicts with 28-a and RSA 541-A:25. Additionally, it has been the Committee’s consistent opinion that compliance with existing rules by a political subdivision, including funding the costs created by the rules, does not affect a political subdivision’s claim of protection under 28-a when subsequent amendments increase the cost of compliance.

The Committee also agreed with Ms. Silva’s testimony regarding the Department’s contention that 28-a is not implicated by the proposal because costs involved are funded by sewer user fees, not by general taxation. Ms. Silva indicated that many WWTF are supported by general tax dollars. She also testified that the additional costs created by the proposal are imposed on political subdivisions, not on the payers of sewer user fees. Whether political subdivision chooses to pass those costs on to users is not relevant to determining whether the rules place a cost on political subdivisions.

Based on the foregoing, the Committee determined that the proposed rules contain new, modified or expanded requirements that necessitate further expenditures by political subdivisions in violation of 28-a.