Certified Final Objection No. 21 of the
Joint Legislative Committee on Administrative Rules
At its meeting on December 19, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 90-247 of the Commissioner of the Department of Environmental Services (Commissioner) containing rules relative to imposition of administrative fines. The Commissioner responded by letter dated January 9, 1991.
At a special meeting on March 8, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 90-247. 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:3-e, VI:
After a. committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. 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 outlines the basis upon which the final objection has been entered:
1. Env-Wr 801.01
The Committee objected that, pursuant to RSA 541-A:3-e IV(a) and Committee Rule 401.01, rule Env-Wr 801.01 is beyond the authority of the Commissioner to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution.
Rule Env-Wr 801.01 provides that "fines under this chapter shall be imposed for each offense upon the landowners dam owner, contractor, and any other person, whether or not he/she is the owner of the land, who violates the provisions of RSA 482 or the administrative rules governing the water resources division." The Committee concluded that because the rule fails to distinguish between owners that are political subdivisions and those who are not, the rule violates Pt. 1, Art. 28-a of the New Hampshire Constitution, which provides:
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 determined that unless a political subdivision takes the positive step to approve them for funding, the new, expanded or modified programs or responsibilities would be unconstitutional. The Committee determined that the problem is that the rules actually penalize political subdivisions that exercise their constitutional power to decline, by formal vote or otherwise, to comply with any unfunded mandates in rules enforced by the Department. The penalty is in the form of the levying of administrative fines. Fining the political subdivisions that decline to fund such requirements undercuts the very purpose of the power to so decline.
The Committee rejected the argument offered by the Commissioner that Pt. 1, Art. 28-a does not apply to proprietary functions that have been voluntarily assumed by the political subdivisions. The Committee also rejected the Commissioner's argument that "there is no valid statutory or constitutional basis for differentiating between private and public owners of dams with respect to the administrative fines." The Committee's position is that there clearly a valid reason for differentiating between certain types of owners of dams; it is found in Pt. 1, Art. 28-a of the New Hampshire Constitution, which itself creates the basis for such differentiation.
2. Env-Wr 802.03
The Committee objected that rule Env-Wr 802.03 violate Committee Rules 403.01(d), 403.02(c) and 402.02 as they are contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.
Rule Env-Wr 802.03 provides what aggravating or mitigating factors will be used to increase or decrease the amounts of the fines imposed by the Department. The rules did not indicate what about the factors will make it more or less likely to increase or decrease the actual fines. The rule merely indicates that the "facts" contained in the record will be used for fine determination.
For more information on the background for this final objection, copies of a transcript of agency testimony before the Committee on March 8, 1991 and related documents are available from the Office of Legislative Services at the normal rate of $.20 per page.