Certified Final Objection No. 110 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, IV, to enter a preliminary objection to Final Proposal 98-116 containing proposed rules Env-Ws 1600 of the Department of Environmental Services (Department) relative to septage management. The Department responded by letter dated March 8, 1999.
At its meeting on April 16, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-116. 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:
The Committee determined that Env-Ws 1604.08 is, pursuant to Committee Rules 401.01(c) and 402.02(a), beyond the authority of the Department and contrary to legislative intent by conflicting with RSA 541-A:30, II and III, as described below.
The rule states, in part, "If … the permitted activity shall create an immediate danger to human health or the environment, the department shall modify the conditions of a permit without request by the permit holder." It was the Committee’s opinion that taking action against a permittee would require compliance with RSA 541-A:30, II or RSA 541-A:30, III by the Department.
Pursuant to RSA 541-A:30, II, agencies are prohibited from modifying permits unless permittees are first given notice and an opportunity for an adjudicative proceeding. The Committee noted that Env-Ws 1604.08(b)(4) allows permittees to request a hearing, but it was the Committee’s determination that the rule did not indicate such a hearing would be held prior to permit modification. Therefore, the Committee concluded that the rule conflicted with RSA 541-A:30, II.
RSA 541-A: 30, III contains an exception to the prior hearing provision in RSA 541-A: 30, II for instances when public health, safety or welfare requires emergency action. The Committee noted that Env-Ws 1604.08(a) applies when there is an immediate danger to human health or the environment. However, the Committee determined that the statute contains 2 qualifications not met by the rule. First, the statute’s application is limited to immediate suspension of a permit, while the rule applies to modification of a permit. Secondly, the statute requires that a hearing be commenced within 10 working days. The rule does not require a hearing. Therefore, the Committee determined that the rule conflicts with RSA 541-A:30, III.
The Committee objected that Env-Ws 1607.09 is contrary to legislative intent, pursuant to Committee rule 402.02(a), by violating certain statutes, as set forth below.
Env-Ws 1607.09(a) establishes a table listing buffer areas around various objects, subject to certain exceptions or conditions stated in Env-Ws 1607.09(b). Env-Ws 1607.09(a) prohibits the application of septage within the established buffer areas. Pursuant to the rule, no person shall apply septage 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, require a buffer distance of 250 feet from waters which have been designated, respectively, as rural rivers, rural-community rivers or community rivers. It was the Committee’s determination that the Env-Ws 1607.09(a) conflicts with these statutes by establishing a smaller buffer distance.
The Committee noted that Env-Ws 1607.09(b)(1) allows the buffer distance between surface water and land-applied septage 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 1607.09(a) and (b) 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 (b)(1) regarding RSA 483 only applies to the reduction from 125 feet to 75 feet.