Certified Final Objection No. 35 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 20, 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 91-216 containing proposed amendments to rules of the Department of Environmental Services (Commissioner) relative to solid waste permitting. The Commissioner responded by letter dated December 23, 1991.

At its meeting on January 17, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-216. 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 summarizes the bases upon which the final objection has been entered:

1. Part 1, Article 28-a

The Committee objected that the following rules, pursuant to RSA 541-:3-e, IV(a)and (b) and Committee Rules 401.04 and 402.04, are beyond the authority of the Commissioner and contrary to legislative intent to the extent that such rules violate Pt. 1, Art. 28-a of the New Hampshire Constitution: Env-Wm 301.03(i), and (p) through (r); Env-Wm 307.02(g); Env-Wm 307.03(a)(2), (e), (f), (i) and (j); Env-Wm 307.05(g); Env-Wm 315.02(a); Env-Wm 315.06(a); Env-Wm 315.09(a)(2); Env-Wm 316.01; Env-Wm 316.02(b)(6); Env-Wm 316.06(g)(4); Env-Wm 317.02(a); Env-Wm 317.06; Env-Wm 317.11(a) and (e); Env-Wm 317.13(c); Env-Wm 317.14; Env-Wm 317.15; and Env-Wm 318.06. Pursuant to Pt. 1, Art. 28-a,

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 determined that unless the state has provided funding or unless a political subdivision takes the positive step to approve them for funding, the new, expanded or modified programs or responsibilities are unconstitutional as applied to that political subdivision. The Committee determined that, to the extent that these rules impose requirements, which did not exist prior to the adoption of Pt. 1, Art. 28-a, upon political subdivisions, and neither the state nor the political subdivision agrees to fund compliance, such requirements are beyond the authority of the Commissioner and unconstitutional because they violate Pt. 1, Art. 28-a. Therefore, to the extent that the rules impose post-Pt. 1, Art. 28-a requirements or responsibilities, the Committee objected that the rules are contrary to legislative intent by violating Pt. 1, Art. 28-a, and is beyond the authority of the Commissioner.

In his response the Commissioner offered two arguments for inclusion of the post-Pt. 1, Art. 28-a requirements. The Commissioner asserted that Pt. 1, Art. 28-a applies only in the case of an activity that is exclusively governmental and is inapplicable to activities that are not required of a political subdivision, but have been voluntarily undertaken by it. The Commissioner also argued that the rules "are as much designed to ensure public health and safety as they are to protect the environment."

The Committee has consistently rejected the "governmental/proprietary" distinction because the constitution itself makes no such distinction, and rejected the second argument because, in the view of the Committee, it is not an argument used to demonstrate how the rules are consistent with the constitution, but is, in effect, a rationale for violating the constitution.

2. Outstanding Final Objection

The Committee objected to Env-Wm 317.02(a) and Env-Wm 317.11(e) using the same bases for these rules as it had in voting on December 20, 1991, to enter a final objection to, and petition for, Final Proposal 91-079. The bases for final objection to the two rules cited above include the bases for objection and petition to Env-Ws 317.05 thru 317.14 invoked by Env-Wm 317.02(a). For a full discussion of these bases, see the text of the final objection to Final Proposal 91-079 published in the December 27, 1991 Rulemaking Register, and the December 30, 1991 petition letter sent from Scott F. Eaton, Esq., for the Committee to Robert W. Varney, Commissioner.

The bases for the final objection to Final Proposal 91-079 included that the rules were, pursuant to RSA 541-A:3-e, IV(a) through (c) and Committee rules 401.01, 402.02, 403.01(d), and 403.02(c) and 403.01(f), beyond the authority of the Commissioner, contrary to legislative intent by the violation of statutory and constitutional provisions, and contrary to public interest by being designed to benefit the administrative convenience of the Department to the detriment of the public and by not being clear and understandable and capable of uniform enforcement.