Certified Final Objection No. 102 of the
Joint Legislative Committee on Administrative Rules
At its meeting on August 21, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-092 containing proposed amendments to rules of the Department of Environmental Services (Department) relative to administrative fines. The Department responded by letter dated August 26, 1998, and received on August 27, 1998.
At its meeting on September 21, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(c), to enter a revised objection to Final Proposal 98-092 at the request of the representative of the Department. The Department responded by letter dated September 29, 1998, and received that same day.
At its meeting on November 20, 1998, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-092. The final objection has been filed with the Director of the Office of Legislative Services for publication in the November 25, 1998 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:
Violation of Part 1, Article 28-a
The Committee objected that, as contained in the revised objection response for Final Proposal 98-092, Env-C 601.03 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 (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 states that "the department shall not apply the rules in Chapter Env-C 600 in such a way as to violate Part I, Article 28-a of the New Hampshire Constitution."
The Committee has long held the view that no agency can impose and enforce against a political subdivision any rule adopted after 28-a became effective in November of 1984 unless either the state funds the cost of compliance by the political subdivision or the political subdivision takes the positive step to approve funding for the new, expanded, or modified programs or responsibilities contained in such rule. However, the Committee noted that the Department has repeatedly indicated its view that imposition of fines upon political subdivisions for non-compliance with requirements that have been adopted after 28-a became effective violate the provisions of 28-a, even if the political subdivisions have not approved to fund compliance.
The Committee noted that Env-C 601.03 appears to have no practical effect, as the Department would have no authority to act in a manner that violates 28-a even if this rule were removed from Env-C 600. In the Committee’s view, there was no indication that, as a result of the adoption of Env-C 601.03, the Department would enforce its rules differently with respect to political subdivisions. Specifically, the Committee determined that Env-C 601.03 neither stated the process by which the Department would evaluate whether application of a particular rule, including the imposition of an administrative fine, to a political subdivision would violate 28-a, nor provided a flatly-stated exemption for political subdivisions. Thus, the Committee concluded that Env-C 601.03 was beyond the authority of the Department and contrary to legislative intent to the extent that the rule does not provide to the political subdivisions the protections contemplated by 28-a.