Certified Final Objection No. 57 of the

Joint Legislative Committee on Administrative Rules

At its meeting on November 20, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to object to Final Proposal 92-163 relative to best management practices (BMP) for potential contamination sources, as proposed by the Commissioner of Environmental Services (Commissioner). The Commissioner responded by letter dated December 17, 1992.

At its meeting on February 12, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-163. 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 for the Committee's final objection:

Env-Ws 421

The Committee objected that Env-Ws 421 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 Env-Ws 421 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.

The Department indicated, in its notice published in the August 7, 1992 Rulemaking Register, that although the rules are new and there are costs to political subdivisions associated with the implementation of this rule, such costs are attributable only to RSA 485-C and not these rules. The Committee determined that this statement is not entirely accurate, as RSA 485-C:4, VII, only states that the Division is required to adopt rules relative to "best management practices as provided under RSA 485-C:11." Similarly, RSA 485-C:11, I, states, in pertinent part, that "the division shall develop best management practices for the activities identified in RSA 485-C:7." The Committee determined that it is clear from these statutes, that it is up to the Division to "develop" the details and set the specifics for BMP. As the Division has discretion to "develop" BMP, the Committee determined that the cost associated with compliance with a requirement is a cost that has been imposed by these rules, and not RSA 485-C.

The Commissioner argued that "the statute does not specifically exempt political subdivisions from compliance with any legal requirements set forth in the statutes." The Commissioner also stated that political subdivisions "may choose to refrain from engaging in the activities involving such regulated substances; if they choose to engage in such activities, we believe they should be held to the same standards as any other party."

The Commissioner's arguments are not new and are based upon the "proprietary" v. "governmental" function distinction. However, on May 6, 1992, RSA 541-A:3-l eliminated that distinction as a basis for arguing that Art. 28-a is not violated by an agency's rules. That statute states that the kinds of programs or functions to which the provisions of Art. 28-a apply, include "those functions of a nature customarily undertaken by municipalities whether or not performance of such functions is required by statute." The types of functions under RSA 485-C:7 for which BMP may now be developed include operating vehicle service and repair shops, maintaining oil storage facilities, operating certain types of septic systems, and storage of salt for winter road maintenance. Such functions appear to the Committee to fall squarely within the scope of RSA 541-A:3-l, which the Committee determined effectively negates the Commissioner's arguments.