Certified Final Objection No. 39 of the

Joint Legislative Committee on Administrative Rules

At its meeting on March 20, 1992, 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 92-006 containing proposed amendments to the rules of the Commissioner of the Department of Environmental Services (Commissioner) relative to administrative fines. The Commissioner responded by letter dated April 13, 1992.

At its meeting on May 1, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-006. 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 basis upon which the final objection has been entered:

Env-C 601.025

The Committee objected that Env-C 601.025 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 the Env-C 601.025 conflicts with Part 1, Article 28-a of the New Hampshire Constitution. Pt. 1, Art. 28-a of the New Hampshire Constitution 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.

Env-C 601.025 governs how fines shall be imposed against municipalities for violations of rules enforced by the Department. The rule, in essence, states that no fine will be imposed against a municipality if a court of competent jurisdiction determines that Pt. 1, Art. 28-a exempts the municipality from the rule allegedly violated.

The Committee concluded that the rule fell short of compliance with Pt. 1, Art. 28-a in that it still required the municipality to comply with the rule and pay the fine, even if it chooses not to fund such actions, unless the municipality challenges the rule in court. The Committee determined that Art. 28-a requires that municipalities be exempt from such rules in the first instance and should not have to challenge them.

The Committee also 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, which did not exist prior to the adoption of Pt. 1, Art. 28-a, impose requirements upon political subdivisions, and neither the state nor the political subdivision agrees to fund compliance, such requirements are beyond the authority of the Department and unconstitutional because they violate Pt. 1, Art. 28-a. The Committee also determined that, since the rules impose requirements or responsibilities that did not exist prior to the adoption of Pt. 1, Art. 28-a, the rules are contrary to legislative intent by violating a constitutional provision.