Certified Final Objection No. 19 of the

Joint Legislative Committee on Administrative Rules

At its meeting on January 18, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 90-316 of the Commissioner of the Department of Environmental Services (Commissioner) containing rules relative to septage and sludge disposal. The Commissioner responded by letter dated February 8, 1991.

At a special meeting on March 8, 1991, the Committee voted, pursuant to RSA 541-A: 3-e, V(c), to enter a final objection to Final Proposal 90-316. 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:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule-to establish that. the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. 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 outlines the rules to which the Committee objects and the reasoning upon which the final objection has been based:

Env-Ws 804.04 and Env-Ws 805.04

The Committee objected that, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, rules Env-Ws 804.04 and Env-Ws 805.04 are beyond the authority of the Commissioner to the extent that they violate Part 1, Article 28-a of the New Hampshire Constitution.

Rules Env-Ws 804.04 and Env-Ws 805.04 specify the application fees to be paid for the issuance of a permit to remove or transport septage to a disposal site or wastewater treatment facility and the issuance of a permit to operate a septage/sludge disposal site, respectively. These fees are applicable to every applicant, regardless of whether the applicant is a political subdivision or whether the applicant is a private entity or natural person. The fees were first imposed pursuant to an interim rule in the spring of 1990. However, pursuant to Part 1, Article 28-a of the New Hampshire Constitution, effective in November of 1984,

the state shall not mandate or assign any new, modified or expanded programs or responsibility s 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 of responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

The Committee determined that Pt. 1, Art. 28-a, requires that, unless a political subdivision takes the positive step to approve for funding those programs or responsibilities which are new, modified, or expanded since November, 1984 such programs or responsibilities are unconstitutional as applied to such political subdivisions. The Committee determined that the rules were adopted after Art. 28-a became effective but impose fees and other requirements or responsibilities which necessitate additional expenditures by the political subdivisions.

The Commissioner's response to the preliminary objection indicated that the Commissioner believes that Art. 28-a does not apply to "proprietary functions." The Commissioner offered a second analysis as to why he believes that Art. 28-a does not apply to this situation: that the rules "are as much designed to ensure public health and safety as they are to protect the environment."

The Committee rejected both arguments made by the Commissioner with respect to this issue. The Committee concluded that the plain language of Art. 28-a makes no distinction between governmental and proprietary functions, and the Committee rejected the assertion that proprietary functions do not fall within the scope of Art. 28-a. The Committee also rejected the analysis that the degree to which Art. 28-a would be applicable, irrespective of the governmental/proprietary distinction, would be determined by the purpose of the agency in adopting the rule, with the "higher" or more "laudable" the purpose, the less applicable Art. 28-a should be.


For more information on the background for this final objection, copies of a transcript of agency testimony before the Committee on March 8, 1991 and related documents are available from the Office of Legislative Services at the normal rate of $.20 per page.