Certified Final Objection No. 58 of the
Joint Legislative Committee on Administrative Rules
At its meeting on January 15, 1993, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-229 containing proposed rules of the Commissioner of Environmental Services (Commissioner) relative to groundwater protection. The Commissioner responded by letter dated February 11, 1993.
At its meeting on May 21, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-229. 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.
Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for the final objection, are specified in the annotations to the rules made by the Committee's Attorney. Copies of the rules with the annotations made by the Committee's Attorney can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.
1. Part 1, Article 28-a Statement
The Committee objected that Final Proposal 92-229 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating RSA 541-A:3-a, I-a, as discussed below.
Pursuant to RSA 541-A:3-a, I-a, agencies are required to "provide the legislative budget assistant a statement with adequate details and supporting data that the proposed rule does not violate" the constitutional provision. The "adequate details" are provided by responding to the provisions of Ls-A 301.03(e)(1) through (4), but the statement provided by the Department was determined by the Committee not to be responsive, and appeared to be factually untrue. The statement, in its entirety, stated that,
The rules implement statutory provisions. Any costs associated
with the activities described in these rules are attributable to
the statute. The rules therefore do not create any unfunded man-
dates for political subdivisions, and therefore do not violate
Part 1, Art. 28-a of the New Hampshire Constitution.
In the Committee's view, there were specific requirements imposed by the rules, however, which did not appear to have the statutes as their source and therefore were created solely by the Commissioner. The Committee also determined that general statutory provisions have been implemented by rules that detail the specific requirements for compliance with those general statutory provisions. The Committee concluded that an example of the former was in Env-C 410.20(c), which required notification to landowners within the groundwater management zone after Division approval of a groundwater management permit. The rule required that such notice be made by certified mail, even though RSA 485:3, X, the statute that appears to have been cited for authority for this rule, does not require notice or that it be given in this way. The Committee concluded that if a political subdivision is an applicant, it must comply with this notification requirement and incur what could be very significant costs. Yet, the statement, quoted above, indicated that the cost was created by "the statute," although it is not clear precisely which statute impose such costs, as these rules implement three different chapters of statutes.
An example of implementation of a general statutory provision can be found in Env-C 410.23(d), which specifies that the remedial action plan for remediation of contamination of groundwaters must be prepared by a professional engineer and must include the items listed. The Committee concluded that this requirement, for a remedial action plan, also appeared to have RSA 485:3, X, as its authority. However, the statute only refers to remediation in the most general terms and leaves it up to the Division of Water Supply and Pollution Control (Division) to develop all the details in rules. In the Committee's view this rule imposed a cost upon political subdivisions by making the general language of the statute enforceable through rules that provide all the details necessary for compliance and enforcement. Thus, the Committee determined that the claim that it is the statute that created the costs associated with compliance is not accurate.
Additionally, the Committee determined that the statement did not address whether the rules implement new, expanded or modified programs or responsibilities. This rulemaking proceeding is for the adoption of these rules, since the previous rules governing this subject largely expired more than 2 1/2 years ago. In the Committee's view the requirements being implemented by this rulemaking proceeding are new and therefore the programs or responsibilities also must be new.
2. Violation of Pt. 1, Art. 28-a
The Committee objected that Final Proposal 92-229 is, pursuant to Committee Rule 401.04, beyond the authority of the Commissioner and, pursuant to Committee Rule 402.04, contrary to legislative intent by violating Pt. 1, Art. 28-a of the New Hampshire Constitution. The Committee concluded that the rules violate Pt. 1, Art. 28-a to the extent that they were not proposed pursuant to federal requirements or go beyond what is required by the federal requirements.
The constitutional provision in question, Pt. 1, Art. 28-a, 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 Committee has consistently embraced the position that 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. As discussed above, there are instances in the rules in which the Department has imposed requirements that will cause political subdivisions to incur costs without such costs being funded by the state. In the Committee's view the Department's statement appeared to admit that there are costs imposed by the requirements contained in the rules. The Committee decided that the statutes that the rules implement could be implemented so as not to violate Pt. 1, Art. 28-a by providing that political subdivisions that choose not to fund compliance with such provisions shall not be required to comply with them.
3. Uniform System of Numbering and Drafting
The Committee objected that, as indicated in the annotations, Final Proposal 92-229 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 541-A:3-a, VIII, to the extent that the rules fail to comply with the uniform system of numbering and drafting adopted by the Director of Legislative Services.
Pursuant to RSA 541-A:3-a, VIII, each agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the New Hampshire Rulemaking Manual. There are, as indicated in the annotations, instances in which the rules do not comply with the uniform system.
The scope of the Committee's objection specifically included the determination that, to the extent that the rules are adopted pursuant to rulemaking authority granted to the Director after 1990, the agency designation prefix used by the Department for these rules, "Env-Ws," does not comply with the uniform system of numbering and drafting, pursuant to Ls-A 401.03. The Committee determined that the rules of the Director should use a prefix and theus be drafted and organized to indicate that the rules are the Director's, not the Commissioner's. This determination was made based upon the following discussion.
Pursuant to RSA 21-G:9, II(b), the commissioner of a department has the duty to adopt all rules of the department, regardless of whether the authority has been delegated to the commissioner or to a subordinate or administrative unit within the department. To the extent that this creates conflicts between statutory provisions, RSA 21-G:12 provides that any other statute containing specific statements as to powers and duties of a commissioner shall control over the statement of duties in RSA 21-G:9. The Committee noted that RSA 21-O:13 specifically provided for Directors of divisions having rulemaking authority. After the expiration of RSA 21-O:13, on July 1, 1989, the Commissioner of DES became the rulemaker for every division of DES, the practical effect being that wherever any statute stated that the "Director" was the rulemaker, the statutes should be understood to say and mean "Commissioner." The Committee concluded that after the expiration of RSA 21-O:13 any amendment made to a statute that still referred to the director as the rulemaker would strip the Commissioner of rulemaking authority and return it to the Director.
An amendment to RSA 21-O:3, IV, was passed and became effective June 26, 1990, to clarify that the Commissioner is the sole rulemaker for the Department. The amendment only worked, in the view of the Committee, to clarify who had rulemaking authority as of the effective date of the amendment, but would not address subsequent amendments to statutes that specifically referred to a Director as the rulemaker.
However, RSA 485-C, one of the statutes cited by the Commissioner as his authority for these rules, became effective June 28, 1991. Pursuant to RSA 485-C:4 the Division of Water Supply and Pollution Control must adopt rules for the subjects listed. Longstanding practice of the Committee has been to interpret "division" specifically to mean "director" and "department" to mean "commissioner," thus the Committee concluded that it is the Director who must adopt such rules. By way of contrast, RSA 485-C:18 requires that the Commissioner adopt rules relative to administrative fines for violations of RSA 485-C and the rules adopted thereunder. Thus, the Committee concluded, after applying the applicable statutes, that the Director has rulemaking authority under RSA 485-C:4, not the Commissioner. As the Director had approved the text of the rules at each step of the process, even though the rules were proposed by the Commissioner, the Committee concluded that it would only object to the use of the improper agency designation prefix.
4. Env-Ws 410.08(a)(7)c.
The Committee objected that, as indicated in the annotations, Final Proposal 92-229 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 485-A:13, I(a), and RSA 541-A:3, respectively.
The rule, Env-Ws 410.08(a)(7)c., states "in accordance with RSA 485:3, X and 40 CFR Chapter 1 part 144 [sic], the following groundwater discharges shall be deemed to have a permit by rule and are exempt from the requirements of Env-Ws-410.08." The amendment of this section created several problems. The first problem is a problem of structure and clarity. Paragraph (a) states that permits will be required for the activities listed in the subparagraphs that follow, and subparagraph (7) outlines one such activity. However, contained within subparagraph (7) is c., the statement quoted above. The structural problem is that c., which is a clause of (a), states the opposite of (a) and it is not clear which provision will control.
The second problem is somewhat similar, in that in the Committee's view this rule is self-contradictory. The rule states, in (a)(7)c., that specific activities are exempt from Env-Ws 410.08, but the rule that creates the exemption is Env-Ws 410.08.
The final issue relates to the concept of "permit by rule." The phrase means that the discharges listed require no specific application or permit, as the rule allowing such discharges functions as the permit itself. The Committee determined that the use of the concept of "permit by rule" may be permissible under some statutes, such as under RSA 149-M:10, I, which only requires that a permit of some sort be obtained, but does not specifically require that it be a written permit. However, use of the concept of "permit by rule" was determined by the Committee to be impermissible under RSA 485-A:13, I(a), which does require that a written permit be obtained prior to the discharge of sewage or waste to the surface or groundwaters of the state. The terms "sewage" and "waste" have been very broadly defined in RSA 485-A:2. Thus, the Committee concluded that this rule, which does not require a written permit, conflicts with RSA 485-A:13, I(a).