Certified Final Objection No. 135 of the


Joint Legislative Committee on Administrative Rules


            At its meeting on September 16, 2005, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2005-112 containing Env-Wm 2100 – 3700, renumbered as Env-Sw 400 – 2000, of the Department of Environmental Services (Department) relative to solid waste program rules.  The Department responded pursuant to RSA 541-A:13, V(c) with an amended proposal and with a cover letter from the Commissioner dated September 30, 2005. 


At its meeting on October 20, 2005, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2005-112.   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(f), 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 basis for the Committee’s final objection:


Contrary to the Public Interest


            Pursuant to RSA 541-A:13, IV(c), the Committee objected that the following rules are contrary to the public interest:


·         Env-Sw 1501.03 – entire section

·         Env-Sw 1507.04(b) – entire paragraph

·         Env-Sw 1507.05 – entire section

·         Env-Sw 1507.06(a)(2) and (b) – in both provisions, the following: “and the individual identified pursuant to Env-Sw 1507.05(c)(2), if applicable,”


These rules are provisions of Env-Sw 1500.  That chapter relates to certification of waste-derived products.  Env-Sw 1501.03 specifies the conditions that must exist before the Department would consider certifying construction and demolition debris consisting of wood that has been painted or treated for use as a fuel.  Env-Sw 1507.05 indicates that there will be a comment period for pending applications for certification of waste-derived products, specifies the content of the public notice, and states the requirements for a public hearing on the application.  The subdivisions of Env-Sw 1507.04 and Env-Sw 1507.06 listed above are included because they contain references to Env-Sw 1507.05.


Certified Final Objection No. 135 of the


Joint Legislative Committee on Administrative Rules


Page 2


All the rules listed above were inserted or amended by the Department in response to the Committee’s preliminary objection.   The Committee discussed whether the changes were substantial, and testimony from an industry representative was received indicating the changes affected a broader range of industry than those stakeholders subject to rules on certified waste-derived products and best available control technology.  The Committee also considered that the existing rules are scheduled to expire on October 29, 2005, and whether there was adequate time to hold another public hearing before then. 


Ultimately, the Committee determined that the substantial changes in the proposal warranted an opportunity for further public input.  Since no further public hearing was held by the Department, the Committee concluded that the proposal was contrary to the public interest.