Certified Final Objection No. 88 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 96-180 containing proposed rules of the Department of Environmental Services (Department) relative to control of aboveground petroleum storage facilities. The Department responded by letter dated March 17, 1997, received by the Office of Legislative Services on March 18, 1997.

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 96-180. 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:

New Hampshire Constitution Part 1, Article 28-a

The Committee objected that, to the extent that Final Proposal 96-180 violates Part 1, Article 28-a of the New Hampshire Constitution, the proposal 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.

Final Proposal 96-180 would create a new part, Env-Wm 1402. The rules establish requirements for the registration, design, installation, operation, maintenance and monitoring of aboveground petroleum storage facilities. The rules would apply to any individual or entity (including political subdivisions) who own or purchase aboveground storage tanks.

In its rulemaking notice form, filed with the Office of Legislative Services on October 4, 1996, the Department stated the following relative to Part 1, Article 28-a:

The proposed rule does not mandate or assign this program to any political subdivision in such a way as to increase the total costs that a political subdivision must pay. The proposed rule establishes the criteria for eligibility for three state-reimbursed clean-up funds. Although there are costs for compliance with the new program, compliance with the program ensures a political subdivision’s

eligibility of the usage of the state clean-up funds. This eligibility could potentially save the political subdivision hundreds of thousands of dollars.

The Committee determined that it was the Department’s assertion that the net result of compliance with the rules would be an economic benefit for political subdivisions, and therefore Part 1, Art. 28-a would not be violated.

The Committee disagreed with this assertion. In the Committee’s view, the costs that would result from a political subdivision’s compliance with the proposed rules are a certainty. However, any economic benefits to be derived from compliance are speculative. The Committee determined that the potential benefits of hundreds of thousands of dollars could only accrue if there is a significant spill of petroleum products, and if the political subdivision is reimbursed for the cost of clean-up.

Therefore, to the extent political subdivisions which currently own aboveground petroleum storage facilities incur costs for compliance with these new requirements, the Committee concluded that the rules violate Part 1, Article 28-a.