Certified Final Objection No. 70 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 17, 1994, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 94-047 containing proposed amendments to rules of the Department of Environmental Services (Department) relative to administrative fines. The Department responded by letter dated June 30, 1994.

At its special meeting on November 30, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 94-047. 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.

Please note that this rulemaking proceeding was commenced prior to the effective date of Laws, 1994, 412, which recodified RSA 541-A. Therefore, RSA 541-A as it existed prior to the 1994 legislation was the applicable law for this proceeding. Similarly, although the New Hampshire Rulemaking Manual was amended in August, 1994, the version of the Manual that was in effect at the time of the commencement of the rulemaking proceeding contained the provisions of the Uniform System of Numbering and Drafting (Ls-A 400) with which the Department was required to comply.

1. Env-C 601.03 Violation of Part I, Article 28-a

The Committee objected that Final Proposal 94-047 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 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.

Env-C 601.03 governs how fines shall be imposed against municipalities, among others, for violations of statutes or 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. I, Art. 28-a exempts the municipality from the rule allegedly violated.

The Committee concluded that the rule fell short of compliance with Pt. I, 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 Pt. I, 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 this rule, which did not exist prior to the adoption of Pt. I, Art. 28-a, imposes requirements upon political subdivisions, and neither the state nor the political subdivision has agreed to fund compliance, the rule is beyond the authority of the Department and violates Pt. I, Art. 28-a.