At its meeting on July 19, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-089 containing rules of the Water Well Board (Board). The Board responded by letter dated August 29, 1996, received by the Office of Legislative Services on September 3, 1996.

At its meeting on October 18, 1996, the Committee voted, pursuant to RSA 541-A:13, V(c), to enter a revised objection to Final Proposal 96-089. The Board responded by letter dated November 26, 1996, received by the Office of Legislative Services on November 27, 1996.

At its meeting on December 20, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-089. 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:13, VI:

The following summarizes the bases for the Committee’s final objection:

The Committee determined that We 202.01 is contrary to legislative intent, pursuant to Committee Rule 402.02(a) by conflicting with RSA 482-B:16, II as discussed below.

RSA 482-B:16, II authorizes the Board to impose fines "upon any person who fails to file timely well records pursuant to RSA 482-B." Pursuant to RSA 482-B:10, such well records are to be filed by water well contractors and by pump installers. In the revised objection response (ROR), We 202.01 stated that "both licensed and unlicensed water well contractors shall be subject to the administrative fines under We 900 for each offense." As the rule does not subject pump installers to administrative fines for failing to file timely well reports, the Committee concluded that the rule conflicts with RSA 428-B:16, II.

The Committee determined that We 303.03 is contrary to legislative intent, pursuant to

Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:3 and RSA 541-A:22, I, as described below.

The rule states "undue hardship shall be determined by the board with regard to the requirement or requirements for which an exemption is being sought." The Committee concluded that determining whether hardship exists is a discretionary decision which, unless performed in an entirely arbitrary manner, requires the application of some form of criteria or conditions by the Board. As the Board has not specified any conditions or criteria which must exist for the Board to take the action contemplated by the rule, the Committee determined that such conditions or criteria will be set outside the rulemaking process mandated by RSA 541-A:3 and will be enforced in violation of RSA 541-A:22.

The Committee determined that We 604.03 is, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:3, and RSA 541-A:22, I, and is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement as described below.

The provisions of We 604.03, in part, specify how the Board determines whether a well has been abandoned. The Committee concluded, however, that the rule does not actually state criteria for this determination. In the Committee’s view, the rule merely states that the Board will conclude that a well is abandoned if it is an abandoned well. The Committee concluded that the lack of criteria makes it unclear how the determination of abandonment is made, and will result in requirements being set outside the process mandated by RSA 541-A:3, and their enforcement in violation of RSA 541-A:22, I.

The Committee determined that We 604.05 is, pursuant to Committee Rules 401.01(c) and 402.02(a), beyond the authority of the Board and contrary to legislative intent by conflicting with RSA 482-B:4, as described below.

The Committee determined that the statutes governing the Board, RSA 482-B, contained no reference to abandonment of wells, and therefore conferred no specific authority to the Board regarding abandonment. It was the Committee’s view that RSA 482-B:4, X, is the only statute conferring rulemaking authority regarding standards for wells. That statute authorizes the Board to adopt "standards for the construction and maintenance of wells." It was the Committee’s determination that the term "construction and maintenance" does not encompass "abandonment." Therefore, the Committee determined that regulation of abandonment is beyond the authority of the Board and conflicts with the limitations established in RSA 482-B:4, X.

5. We 901.02

The Committee determined that We 901.02(a) and (b) are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement as described below.

We 901.02(a) and (b), respectively, allow the Board to decrease or increase the amount of an administrative fine. The Committee noted that while both paragraphs list criteria, the fine adjustment is not controlled by the truth or existence of such criteria. Instead, the fine adjustment is based upon the existence of testimony regarding the criteria. The Committee concluded that this language would, for example, allow the Board to increase a fine regardless of the content of testimony concerning aggravating criteria. Therefore, the Committee determined that the rule was too vague to be uniformly enforced.