Certified Final Objection No. 87 of the

Joint Legislative Committee on Administrative Rules

At its meeting on February 14, 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 96-233 containing proposed rules Env-Ws 1401 of the Department of Environmental Services (Department) relative to underground storage tanks. The Department responded by letter dated March 14, 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 96-233. 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:

Part 1, Article 28-a of the NH Constitution

The Committee objected that that Final Proposal 96-233 violates Part 1, Article 28-a of the New Hampshire Constitution to the extent that the proposal contains new, modified, or expanded programs or responsibilities applicable to political subdivisions in such a way as to necessitate additional local expenditures (1) for which the state has not provided funding or the political subdivision has not approved funding, and (2) whether or not they are proposed pursuant to a federal mandate. The Committee determined that such provisions therefore are 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 Committee concluded that the rules contained in this proposal differ significantly and substantively from those this proposal will replace. Such amendments range from inventory monitoring to mandated removal of underground storage tanks. The Committee concluded that there will almost certainly be costs associated with complying with the new and/or amended provisions.

The Department’s representatives indicated when testifying before the Committee that political subdivisions will benefit from complying by reducing the likelihood of having a release of product, thereby polluting the ground and possibly polluting ground and surface waters. The Department indicated that the costs of cleanup would be significant. Further, it argued, if the political subdivision was in compliance with these rules at the time of the release, it would be eligible to receive reimbursement from the Oil Discharge and Disposal Cleanup Fund (Fund). If the political subdivision were not in compliance, it would not be eligible to access the Fund.

The Committee recognized that the argument advanced by the Department relative to eligibility for reimbursement provided strong incentive for compliance with these rules by political subdivisions. The Committee also indicated that it believed the Department could require compliance with these rules as a condition of eligibility for access to the Fund, including access by political subdivisions, as such actions would be entirely voluntary. However, the Committee determined that, to the extent that the rules violate Pt. 1, Art. 28-a, the Department could not simply mandate compliance with these rules.

The Committee also indicated that it believes that even in the case of the amendments proposed to be made to these rules to implement changes in federal law or regulation, such amendments violate Pt. 1, Art. 28-A. The Committee determined that the Department is still bound by the constraints and prohibitions of Pt. 1, Art. 28-a, even when implementing such federal statutes or regulations.