Certified Final Objection No. 86 of the

Joint Legislative Committee on Administrative Rules

At its meeting on March 21, 1997, 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 97-006 containing proposed rules Env-Ws 901 of the Department of Environmental Services (Department) relative to certification of wastewater treatment plant operators. The Department responded by letter dated April 11, 1997, received by the Office of Legislative Services on the same date.

At its meeting on April 18, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 97-006. 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:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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 bases for the Committee’s final objection:

Env-Ws 901.03(b)

The Committee objected that Env-Ws 901.03(b) is beyond the authority of the Department, pursuant to Committee Rule 401.01(c).

Env-Ws 901.03(a) establishes four different grades of certification for wastewater treatment plant operators. In pertinent part, Env-Ws 901.03(b) provides that "there shall be an operator-in-training status for all grades of wastewater operator certification." Each grade of certification is unrestricted and does not require supervision by any other person. Those with operator-in-training status (OIT) must be supervised by someone with an appropriate certificate. Although the levels of OIT status do not entitle the person to operate a facility, such persons are eligible to receive permission to be in responsible charge of a facility. In the Committee’s view it was clear that the Department contemplated that certified operators and OITs have different levels of responsibility and experience.

The Committee noted that RSA 485-A:6, XI, requires the Commissioner to adopt rules relative to "the minimum qualifications for and certification of operators of pollution control facilities." The Committee also took cognizance of RSA 541-A:22, III(c), which prohibits an agency from requiring licensing unless there is specific authority to do so. As no person can operate a wastewater treatment plant without a certificate or OIT status, the Committee determined that the certificates and the OIT statuses amount to "licenses" as that term is defined in RSA 541-A:1. Thus, the Committee concluded that RSA 485-A:6, XI, provides the Commissioner with authority to establish the four grades of certification outlined in Env-Ws 901.03(a), but does not establish the authority also to establish the OIT status.

Env-Ws 901.10(b)

The Committee objected that Env-Ws 901.10(b) violates Part 1, Article 28-a of the New Hampshire Constitution, and therefore is beyond the authority of the Department, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states 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 provision, Env-Ws 901.10(b), states that:

After May 1, 1998, each wastewater treatment plant owner shall have a back-up certified operator available to be in responsible charge of a wastewater facility in the absence of the usual certified operator in responsible charge. This back-up operator shall hold a certificate of no more than one grade lower than that of the grade of the facility or hold an OIT certificate in the grade of the facility. In the case of a grade 1 plant, the back-up operator shall hold a grade 1 or grade 1-OIT certificate.

The Committee determined that Env-Ws 901.10(b) as quoted above did not exist prior to November 28, 1984, the effective date of Pt. 1, Art. 28-a. The Committee objected that Env-Ws 901.10(b) imposes a requirement that will necessitate increased expenditures by political subdivisions even in the absence of a vote by the local legislative body of the political subdivision to approve funding for compliance with this provision or such funding by the state, and therefore violates Pt 1. Art. 28-a.

In discussions before the Committee, the Department has taken the position that many political subdivisions already have taken steps to have a back-up operator available for each facility even though the rules did not require such an operator. The Committee noted, however, that the rules have been expanded or modified to require back-up operators, regardless of whether the political subdivisions have as yet made arrangements for them. The Committee also noted that, since no back-up operator had been required under the rules, some political subdivisions obtained the services of uncertified back-up operators. Thus, the Committee concluded that even those political subdivisions that have back-up operators might face increase costs associated with arranging for back-up operators who are certified.

When discussing its objection response with the Committee, the Department argued that the onus was on the operator to pay for the cost of becoming certified, and that political subdivisions were not required to contribute at all. The Committee rejected this argument, noting that these rules will mandate that political subdivisions obtain the services of such persons. In the view of the Committee, the costs imposed by this rule upon the political subdivisions would increase as the level of expertise required and the cost of obtaining such expertise increases. The Committee concluded that this was especially true for those political subdivisions that do not yet have back-up operators, certified or otherwise.