Certified Final Objection No. 32 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June .21, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 91-079, containing proposed rules of the Commissioner of the Department of Environmental Services (Commissioner) relative to the regulation

of solid wastes by the Waste Management Division. The Commissioner responded on June 28, 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 its meeting on December 20, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a final objection to the rules in Final Proposal 91-079 as noted below. 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 101 thru 103; 201 thru 205; 301 thru 319; 2100 thru 2600; Env-Wm 2706.07; 2706,08; Env-Wm 2800.

The Committee objected that wherever these 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 I Article 28-a of the New Hampshire Constitution.

Pursuant to Part I, 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 Department acknowledged in the fiscal impact statement that political subdivisions which own or operate solid waste facilities will bear "the costs of annual operating fees and coming into compliance with the requirements of these rules." For example, the Committee determined that the fees in Env-Wm 307 have increased since the effective date of Article 28-a in November, 1984 and that the expanded technical requirements in Env-Wm 300 and Env-Wm 2100 through 2600 may be more costly to meet than before. The Committee also determined that the Final Proposal for the rules governing municipal solid waste districts in Env-Wm 2700, which towns must join or seek exemption under RSA 149-M, had been amended in a way which may have required increased expenditures in preparing solid waste plans.

The rules did not account for political subdivisions which choose not to fund any additional local expenditures from new, expanded, or modified programs or responsibilities under these rules. Therefore, wherever the rules do mandate or assign new, expanded, or modified programs or responsibilities to political subdivisions since the effective date of the amendment in 1984, in such a way as to necessitate additional local expenditures, then the Committee objected on June 21, 1991, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, that those rules are beyond the agency's authority.

In his written response to the preliminary objection the Commissioner stated that, "The department has not changed the position it has maintained since the first time this issue was raised in rulemaking proceedings, in 1990." In the Department's view "Part I, Article 28-a is not applicable to the adoption of these rules for a variety of reasons, including that many of the requirements of these rules predated the effective date of that amendment, 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, and that the regulations are as much designed to ensure public health and safety as they are to protect the environment." The Department therefore did not amend the rules except those rules in Chapter Env-Wm 2700 which were, in the agency's view, "clearly imposed only on municipalities and not on private entities" and thus within the scope of Article 28-a.

Although relying upon the "proprietary function" distinction for why, in his view, Article 28-a does not apply at all, the Commissioner also stated that "the rules, although substantially more lengthy than the existing rules, do not add requirements, but simply clarify what has been required by the Division under the existing state-of-the-art requirement."

Although some of the new rules may simply restate in amended form a rule in effect prior to the effective date of Article 28-a, the Committee's objection did not go to every rule but to "wherever the rules do mandate or assign new, expanded, or modified programs." It was not required of the agency in the proposed rule to indicate where changes occurred from the existing rule since the rules were completely rewritten. The Committee decided that so long as the rules involve mandating or assigning new or expanded or modified programs or responsibilities to political subdivisions in such a way as to necessitate increased local expenditures, Article 28-a would apply. In the Committee's view, whether Article 28-a applies ultimately, turns on whether "additional local expenditures" are needed for political subdivisions to comply with the new, modified or expanded program or responsibility in these rules as compared to complying with the requirements in rules made effective before Article 28-a went into effect.

For example, the Committee determined that the rules related to landfills are much longer and more comprehensive than before. Pursuant to the former rule Env-Wm 1901.05, sanitary landfill facilities were governed by general standards and some specific standards. For instance, Env-Wm 1901.05 (a) (2)b. required that the facility shall not contaminate groundwater in violation of the rules or permit of the Water-Supply and Pollution Control Division. Env-Wm 1901.05(b) required landfills to be designed "with state-of-the art technology and sound engineering practices," where the design "shall include but not be limited to" the requirements specified. The new rules, however, specifically require, liners and set liner material and construction standards (Env-Wm 2505.04), landfill-set-back requirements (Env-Wm 2504.04), other landfill-siting limitations (Env-Wm 2504.05), leachate collection and removal systems (Env-Wm 2505.06), and leak detection and location systems (Env-Wm 2505.07).

Therefore, the Committee decided that the solid waste regulatory program, at least in some cases, has been expanded or modified since 1984 through the adoption as rules of the lessons learned about "state-of-the-art." The state's rules have changed whether or not the new rules grew out of earlier, more general requirements.

In the view of the Committee, the distinction drawn between proprietary and municipal functions is not present in Article 28-a, and that therefore this distinction by itself would not make Article 28-a inapplicable. The Committee determined that the fact that the rules are designed to ensure public health and safety may be excellent reasons why persons should comply with the rules, but that fact does not address the problem of constitutionality.

As noted in the response letter, the Commissioner amended Chapter Env-Wm 2700, with the exception of Env-Wm 2706.07 and 2706.08, to eliminate some proposed changes to rules which would have invoked Article 28-a. The Commissioner's response letter indicated that Env-Wm 2706.07 and Env-Wm 2706.08 were not amended because these two rules reflect requirements added to RSA 149-M:10 in 1988. The Committee included those two rules in the final objection since in its view Article 28-a still applies to them.

Env-Wm 315.05(c) and (e)

The Committee objected that these rules are beyond the agency's authority, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, by violating the Fifth Amendment to the U.S. Constitution and Part I, Article 15 of the N.H. Constitution.

These rules govern solid waste facilities which have operated with a written permit granted after December 31, 1986. The rules require that the permittee identify or cite in a report to be sent to the Department "all elements of the facility's operations that conflict with the conditions of the facility's permit and/or which do not meet the standards of these rules." The Committee decided on June 21, 1991 that this could amount to a violation of the permittee's right against self-incrimination under the Fifth Amendment to the U.S. Constitution and Part I, Article 15 of the N.H. Constitution, since pursuant to RSA 149-M:30, III, any person who knowingly violates any provision of the chapter or- rule may be guilty of a misdemeanor if a natural person or a felony if any other person. The Committee determined that the rules were therefore beyond the agency's authority by violating the constitutional provisions.

In his response letter the Commissioner stated that, "The 5th Amendment does not preclude these questions from being asked, but it may provide a defense against answering them and against being penalized for refusing to answer them if a permittee chooses to assert such a defense." In the view of the Committee, however, the rules are not questions but requirements with the force of law. Supplying the required information is not optional. The rule Env-Wm 315.05(c) states that the permittee "shall also identify" the elements of the facility's operation which do not meet the permit or which conflict with the rules, and if they are not in compliance, then pursuant to Env-Wm 315.05(e) the specific permit condition and/or rule shall be submitted as, part of a proposed compliance schedule to the Department [Emphasis added]. The Committee determined that the

Department has no authority to compel the applicant to answer under penalty of law for not supplying the information and thus violating the rule. Therefore the Committee decided that the rules are beyond the agency's authority with the same basis for a final objection as for a preliminary one.

Env-Wm 314,04(a), 316,02(b)(1), 317,05(e)(1), and 317.11(f)(1).

The Committee objected that these rules are contrary to the public interest, pursuant to RSA 541-A:3-e, IV(c) and Committee Rule 403.01(f), by being designed to benefit the administrative convenience of the agency to the detriment of the public.

These four rules require the social security number of applicants for certain permits as follows: Env-Wm 314.04(a) (standard facility permits); Env-Wm 316.02(b)(1) (limited permit); Env-Wm 317.05(e)(1) (solid waste operator certificate); and Env-Wm 317.11(f)(1) (solid waste operator certificate renewal).-In the past the Committee has often scrutinized agency requirement for social security numbers to see if the rules are contrary to the public interest by being designed for the administrative convenience of the agency to the detriment of the public. After considering Department testimony at its meeting on June 21, the Committee objected on June 21, 1991 to these four rules on these grounds.

In his response to the objection the Commissioner explained why he believes that, "Social security numbers are essential to a full background investigation" for a person applying to enter a field heavily regulated to protect the public health and environment, and therefore he did not amend the rules. The Committee decided nevertheless that the same basis exists for a final objection as for a preliminary one.

Env-Wm 102.27(c) and 318,03(c).

The Committee objected that these rules are contrary to legislative intent, pursuant to RSA 541-A:3-e, IV(b) and Committee Rule 402.02, by violating RSA 541-A:3-f, II, during the rulemaking process.

These rules were amended in the Commissioner's response of June 28, 1991 but not, in the, Committee's view, in direct response to the Committee objection. Pursuant to RSA 541-A:3-f, II, "any specific change may be made by the agency in direct response to the Committee's written objection," and, aside from editorial changes, these are the only changes permitted between the final proposal and the adopted rule. The Committee decided that these additional changes not in direct response to the Committee objection are contrary to legislative intent by violating RSA 541-A:3-f, II.

Env-Wm 102.27(c) defines "Change in Service Area", and paragraph (c) was amended, but this rule was not subject to an objection in the view of the Committee. Env-Wm 318.03(c) includes a criterion for "direct re-use" of waste, and the amendment expanded paragraph (c) into paragraphs (c) and (d). The Committee determined that the only Committee objection, to Env-Wm 318.03(c) consistent with the Department's request on June 21, 1991, was for the insertion of "and government" in a reference to "manufacturer specifications."

Env-Wm 101 through 103, 201 through 205, 301 through 319, 2100 through 2700.

The remaining reasons for objection to the rules cited above are summarized below and illustrated with selected rules as examples due to the great number of rules involved. However, all of the rules to which the relevant final objections were made, and the grounds for final objection, are indicated with appropriate annotations by Committee staff to a copy of the rules submitted by the Commissioner as part of his response on June 28, 1991 to the Committee's preliminary objection. Annotations related exclusively to bases for petition or to public testimony were excluded as grounds for a final objection. Copies of this annotated version of the rules is available from the Office of Legislative Services, Division of Administrative Rules, at the normal rate of $.20/page.

1. The Committee objected that the rules as noted in the annotations, are contrary to legislative intent, pursuant to RSA 541-A:3-e, IV(b) and Committee Rule 402.02, by the violation of RSA 541-A:3-a, VIII and RSA 541-A:3-d II(e) and IV and contrary to the public interest, pursuant to RSA 541-A:3-e. IV(c) and Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application.

Pursuant to RSA 541-A:3-a, VIII, the agency must conform to the uniform system of drafting and numbering developed by the Director of Legislative Services, and contained in the Rulemaking Manual. The Committee decided on June 21, 1991 that the rules were contrary to legislative intent by the violation of RSA 541-A:3-a, VIII and contrary to the public interest by not being clear and understandable and capable of uniform application. The Committee recommended that the rules be amended generally so, that the rules use "shall" where appropriate, use paragraphs and subparagraphs that form complete sentences with appropriate numbering, and use appropriate language for discretionary decisions pursuant to Ls-A 402.08(c) of the Rulemaking Manual. Incorporation by Reference statements also had to be filed as noted, as otherwise the Committee determined that the rules were contrary to legislative intent by violating Ls-A 402.07 of the Rulemaking" Manual and therefore violating RSA 541-A:3-a, VIII and RSA 541-A:3-d, II(e) and IV.

In his response the Commissioner eliminated most of these instances of non-conformance with the uniform system of drafting and numbering, but there are others which the Committee determined had remained as noted in the annotations, such as relative to Incorporation by Reference statements for Env-Wm 2602.03(c)(1). To this extent the Committee decided that the same basis exists for a final objection as for a preliminary one.

2. The Committee objected that the rules, as noted in the annotations, are beyond the authority of the agency, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01.

The Committee had objected on June 21, 1991 that there were a few rules in the final proposal which appeared to the Committee to be beyond the agency's authority, at least due to the wording chosen. For example, Part Env-Wm 317 governs certificates for solid waste operators who successfully complete a prescribed course of training pursuant to RSA 149-M:10, III-a, but the Committee had decided that the Department had written the rule to make the certificate a "license" in terms of RSA 541-A:l, VI, which could be renewed, suspended, or revoked, for individuals who work at solid waste facilities. Pursuant to RSA 541-A:12, III(B) specific statutory authority is needed for licenses. The course fee prescribed by statute seemed to the Committee to become a license fee without statutory authority, pursuant to RSA 541-A:12, III(c).

The Commissioner addressed some of these problems of authority in his response to the objection, but there are still some rules in the Committee's view where the issue remains as noted in the annotations. To the extent that conflicts with statutes are involved, the Committee decided that the rules are also contrary to legislative intent as noted below in item 3.

In particular, Part Env-Wm 317 still seems to the Committee to go beyond the agency's authority, although the Commissioner in his response has pointed out that RSA 21-0:1-a, II refers to "implementing a training course for and administering a test for certification of solid waste operators." RSA 541-A:12, III-(b) states that an agency shall not by rule require licenses, where licensing involves issuing, denying, repealing, suspending, etc. a license, "unless authorized by a law which uses one of the specific terms listed in RSA 541-A:I, VI" that defines "license" to include "any agency permit, certificate, approval... or similar form of permission required by law."

However, RSA 21-0:1-a, III which refers to certification also adds the provisions "as required under RSA 149-M:10" and that "the registration fee for the course and its establishment and administration shall be as provided in RSA 149-M:10, III-a." RSA 149-M:10, III-a in turn simply states that "No person shall operate or construct a public or private facility... who has not completed a training course established and administered by the division under rules adopted under RSA 541-A. The registration fee for such course shall not exceed $50 per attendee."

In his response the Commissioner eliminated the provisions of Env-Wm 317 related to suspensions or revocations but reduced the certification period from 5 years to 1 year. The rules in Env-Wm 317 still provide not only for the authorized, initial course and exam with the $50 fee but also for an annual renewal of the certificate upon paying another $50 fee for a "training update program." Even if the program is successfully completed, the renewal may still be denied pursuant to RSA 317.11 (g)(3) if the applicant has not carried out his duties over the preceding year in accordance with the rules and the facility's permit. Moreover, the rules in Env-Wm 317.10 provide a reciprocity provision for those initial applicants who have other, comparable certificates or have completed comparable, training, although RSA 149-M:10, III-A requires completion of "a training course established and administered by the division" [Emphasis

added].

Therefore, although the certificate is a "license", in the sense of being a form of permission, it is very limited, and the Committee decided that the Commissioner went beyond what the statute authorized with rules which conflict with the statute's provisions.

 

3. The Committee objected that there are several rules, as noted in the annotations which are contrary to legislative intent, pursuant to RSA 541-A:3-e, IV(b) and Committee Rule 402.02, by appearing to conflict with or violate the statutes cited in the annotations.

For example, Env-Wm 304.04(a) indicates that the Department has 120 days to review an application after it is "deemed complete," but RSA 541-A:14, II seems to require that the 120 days must run from the date the completed application is received, not when, as indicated in the rule, it is determined to be complete. The Committee had objected on June 21, 1991 that the rule was contrary to legislative intent by violating the statute.

In his response the Commissioner made many amendments to address these problems,. but the Committee determined that some remain, as noted in the annotations, which serve as the basis for a final objection on the same ground as for the preliminary one. For example, there still are the issues of conflict as stated earlier in Item 2 for Env-Wm 317. Also, Env-Wm 304.04(a) was not amended in response to the objection. In the response letter the Commissioner stated that "we do not believe that the legislature could possibly have intended that applications be acted upon by an agency within 120 days regardless of whether the application was complete or not. If an application is not complete and the agency is bound by the 120-day limit, the only reasonable action the agency could take is to deny the application." The response went on to express the understanding that the 12-month waiting period, which the Commissioner has created by rule for applicants with incomplete applications to "complete the application" as noted in Env-Wm 102.49 and 304.01(e), would be shortened.

 

The Committee determined that RSA 541-A:14, I allows the agency up to 60 days to review an application to see if it is complete. "Within 60 days of receipt", the agency shall "request any additional information" required by law. Pursuant to RSA 541-A:14, II, with which RSA 149-M:10-b also mandates compliance, "within.... 120 days, after receipt of the application or of the response to a timely request made by the agency pursuant to paragraph I, the agency shall ... approve or deny the application." [Emphasis added].. The 120 days should, in the Committee's view, therefore be calculated from the date the application was complete, i.e. the date of "receipt" of the complete application, not the date it was "deemed complete", which may be sometime after receipt of this complete application. The Department would not have to deny an incomplete application in 120 days. The Committee determined that the Department's 12-month rule allowance to "respond" to a Department request for more information to make the application complete could remain. The 120-day clock pursuant to RSA 541-A:14, II would start at zero again once the response is received. The Committee decided that if the original application was complete at the moment it was received, however, the 120-day clock is still running, and if the Department took the full 60 days to determine or "deem" it complete, then it has 60 more days to approve or deny the application.

4. The Committee objected that there are many rules, as noted in the annotations, which are contrary to the public interest, pursuant to RSA 541-A:3-e IV(c) and Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and therefore not capable of uniform application and which are contrary to legislative intent, pursuant to RSA 541-A:3-e, IV(b) and Committee Rule 402.02, by allowing requirements to be set orally instead of through the rulemaking process mandated by RSA 541-A:3.

The Committee determined on, June 21, 1991, that there were many rules which set requirements which were vague or general, used terms that hadn't been defined, or governed discretionary decisions of the agency without criteria or procedure or both. The Committee decided that these rules were therefore contrary to the public interest by not being clear and understandable and capable of uniform application and contrary to legislative intent, by allowing requirements to be set orally instead of through the rulemaking process mandated by RSA 541-A:3.

In his response the Commissioner made many amendments to address these problems, but the Committee determined that many still remain as noted in the annotations, and for those rules the Committee decided that the same basis exists for a final objection as for a preliminary one. Some examples are described below.

In several rules an applicant for certain approval may seek from the Waste Management Division case-by-case substitutions of a particular technical requirement with an alternative. These alternatives shall be approved "if such alternatives are demonstrated by the applicant to be functionally equivalent or superior to the particular material or procedure specified." In his response to the objection that the rules lack procedure and criteria for a decision, the Commissioner explained "functional equivalency" as a criterion and stated that the demonstration of functional equivalency is made. "during the application review process." The rules do not mention, however, that the decision is made during the review process, and it is unclear to the Committee if the Division approval of the alternative takes place when the application as a whole is approved or at some time prior to approval. The rules in question are as follows, with the type of technical rules noted for which an alternative is requested:

Env-Wm 309.02(b) - Universal Design Standards

Env-Wm 310.02(b) - Universal Construction Standards.

Env-Wm 311.02(b) - Universal Operating Standards.

Env-Wm 312.02(b) - Universal Closure Standards.

Rule Env-Wm 204.02(e) states that one of the cases requiring non-adjudicator public hearings is any matter for which public participation is not required but nevertheless is "deemed by the division to have significant public interest." The Committee on June 21, 1991, objected that it was unclear what degree of interest amounts to "significant". The Department did not amend the rule in response to the objection, and the response letter indicates to the Committee that the Commissioner, feels he cannot be more specific in this rule. The Committee nevertheless determined that the rule was still unclear.

There are several rules where an applicant for certain permits or certificates must identify the "type of waste" to be handled. In his response to the objection that this phrase was unclear, the Commissioner did not amend the rules and stated that, "We have written the rules based on a presumption that they will be read and applied, by the agency as well as the public, with basic common sense and ordinary meanings of words," and "where comments marked in the annotation did not seem to account for this presumption, we have not made any changes." The rule definitions classify wastes in different ways, such as by physical description or source, and some categories overlap, and it is unclear to the Committee how specific an applicant must be when he is asked to specify the "type" of waste. Some examples of rules where the applicant is asked for the "type" of waste are as follows:

Env-Wm 311.07(a)(2), (4) Env-Wm 315.07(b)(2)

Env-Wm 311-08(a)(2) Env-Wm 318.06(c)

Env-Wm 312.03(c) Env-Wm 319.02(a)(1)

Env-Wm 315.02(a)(5) Env-Wm 319.04(b)(2)a.

There are a few rules relative to restricting or controlling access to permitted facilities which were unclear to the Committee because it was ambiguous what degree of control was required relative to persons or vehicles. In Env-Wm 309.05(l), a fence must be constructed to restrict unauthorized access" where not restricted by natural features or existing fences. Env-Wm 309.05(m) states that signs must be erected, if there is no fence, stating that access is restricted, while Env-Wm 311.05(b) requires that access "shall be controlled to prevent unauthorized use." In his response the Commissioner did not amend the rules but instead covered them in the statement that common sense and ordinary meanings apply. It is still unclear to the Committee what "restrict" or "controlled to prevent" mean in the physical sense of barrier construction and whether the restrictions must render not only vehicles but also persons physically unable to enter the site.

Rules Env-Wm 305.07(a)(4) and Env-Wm 306.07(f) require the applicant for a transfer permit and a permit modification and renewal, respectively, to show "sufficient reliability, expertise, integrity and competence" and to meet the criteria in RSA 149-M:10, V-a(a), where this requirement is stated for all permits. It is unclear to the Committee what criteria must be met to demonstrate these qualities since the rules apply to persons. The Commissioner did not amend the rules in his response, although he explained why general goal-oriented requirements are used sometimes for facilities.

There are a few rules where the response itself seems to the Committee to have created a problem of clarity. In rule Env-Wm 307.03(b), for example, the rules on permit fees were amended to include the cost of compliance monitoring in the operating permit fee in order to clarify when and how payment is made of this cost. It is now unclear to the Committee, however, how this cost called "SAC" could be calculated at the necessary time, communicated to the facility, and paid, since pursuant to Env-Wm 307.04(b) the operating fee is billed "for the ensuing fiscal year." In another example, rule Env-Wm 308.04(b) governing prohibited practices, the Commissioner clarified the phrase "rules adopted by the Department" to rules implemented by the Department or any administratively attached board" in response to the Committee objection that the Commissioner adopts the Department rules while the Wetlands Board and Water Well Board adopt their own. The word "implemented" is, unclear to the Committee.