Certified Final Objection No. 23 of the
Joint Legislative Committee on Administrative Rules
At its meeting on January 18, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 90-306, containing proposed rules of the Commissioner of the Department of Environmental Services (Commissioner) relative to the regulation of hazardous wastes by the Waste Management Division. The Commissioner responded on January 24, 1991 by amending some of the proposed rules to address some of the Committee's concerns and by explaining why other amendments were not made.
At a special meeting on March 8, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a final objection to the rules in Final Proposal 90-306. 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 rules to which the Committee objects and the reasons for the final objection:
Env-Wm 110, 211 thru 216, 351 thru 353;
Env-Wm 401 thru 406, 501 thru 513, 601 thru 608;
Env-Wm 701 thru 709, 801 thru 811, 901 thru 903
The Committee objected that wherever the rules do mandate or assign new, expanded, or modified programs or responsibilities to political subdivisions engaged in the regulated area in such a way as to necessitate additional local expenditures, then those rules are beyond the agency's authority, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, by violating Part 1, Article 28-a of the New Hampshire Constitution.
Pursuant to Part 1, Article 28-a of the New Hampshire Constitution,
The state shall not mandate or assign any new, expanded or modified 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 hazardous waste management program has been modified several times since Article 28-a went into effect in 1984 and the final proposal also contained amendments. The Department noted in the fiscal impact statement to the final proposal that, "There will be no additional cost or benefit to the political subdivisions, independently owned businesses or citizens of the state if-[emphasis added] they do not otherwise generate; store, transport or dispose of hazardous waste." Because the rules have been so extensively amended from the current rules, it has not been required for the Department in the rulemaking. process to indicate specifically in the text the different ways the rules have changed except for the changes from the initial to the final proposal.
However, wherever the rules mandated or assigned new, expanded, or modified programs or responsibilities to political subdivisions engaged in the regulated area in such a way as to necessitate additional local expenditures, the Committee objected on January 18, 1991, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, that the rules are beyond the agency's authority by being unconstitutional unless the rules are amended to account for political subdivisions who choose not to fund the increased expenditures. Env-Wm 807.06(a)(2), for example, specifically stated that municipalities are subject to the standards for generators of used oil being recycled, but no such accounting was made.
In his written response to the objection the Commissioner stated that Article 28-a "does not apply to prevent the adoption of these rules" for several reasons. First, many of the requirements in the rules pre-date the effective date of Article 28-a. The Committee's preliminary objection, however, referred only to "wherever the rules do mandate new, expanded, or modified programs" and not to every rule. Secondly, the Commissioner repeated the position taken in several other rulemaking proceedings that "the activities regulated are not peculiar to municipalities but rather are proprietary functions in which a municipality can engage if it chooses to do so." The Commissioner amended Env-Wm 807.06(a)(2) in response to the Committee's preliminary objection to state that "all persons", including municipalities, are subject to the standards for generators of used oil being recycled. However, in the view of the Committee the distinction drawn between proprietary and municipal functions is not present in Article 28-a, and therefore it decided that grounds for the objection still exist.
The written response gave three other reasons why the Commissioner believes Article 28-a is not pertinent. First, "many of the requirements federal mandates." Secondly, "the regulations are as much designed to ensure public health and safety as they are to protect the environment." Thirdly, relative to recently enacted legislation "the Department does not believe it should be second guessing the General Court by refusing to adopt rules on the basis of this amendment."
The Committee determined that the fact that the rules include federal mandates and are designed to ensure public health and safety and protect the environment do not address the problem of constitutionality. As to "refusing to adopt rules", the Committee’s objection was that the rules were unconstitutional unless amended to account for political subdivisions who choose not to fund increased costs. The Committee did not state that the Department should not have rules per se, but that they must reflect the Constitution.
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.