Certified Final Objection No. 72 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 17, 1995, 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 94-174 containing proposed rules of the Department of Environmental Services (Department) relative to Title V permits. The Committee received the Department's objection response on April 3, 1995.
At its meeting on April 21, 1995, Director of Air Resources Kenneth Colburn, representing the Department, requested that the Committee enter a revised objection to Final Proposal 94-174. The Committee acceded to the request and voted, pursuant to RSA 541-A:13, V(c), to enter a revised objection. The Committee received the Department's revised objection response on June 5, 1995.
At its meeting on June 16, 1995, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 94-174. 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 in the 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 Committee objected that the rules listed below are, pursuant to Committee Rule 403.01(b), contrary to the public interest to the extent that the Department has claimed that they are necessary to implement a federal requirement when in fact no federal requirement exists, or the federal requirement is other than as claimed by the Department. The Committee also determined that the rules listed below have, pursuant to Committee Rule 404.01(a), a substantial economic impact not recognized in the amended fiscal impact statement to the extent that the amended fiscal impact statement does not account fully for costs associated with air quality impact modeling analysis.
The rules to which the Committee entered the final objection are as follows:
The Committee noted that the rules contained in this proposal are intended to implement Title V of the 1990 amendments to the Clean Air Act. The Committee further noted that the rules specified above contain provisions relative to air quality impact modeling analysis. Based upon public testimony, which was not disputed by the Department, the Committee concluded that such provisions either are not specifically responsive to a federal requirement placed upon the Department, or the federal requirement is other than as described by the Department.
The Committee noted that the air quality impact modeling analysis required under these rules is, in some cases at least, something that the Department can perform and for which the Department charges fees to cover its costs. These fees are included in the amended fiscal impact statement as part of the $2 million that has been estimated to be the cost to industry for implementation of these rules. However, what has not been included in the estimated program costs are those costs associated with air quality impact modeling analyses that are not performed by the Department. The Committee received testimony that the cost of a single air quality impact modeling analysis performed by a private sector entity can be in the thousands of dollars. Therefore, the Committee concluded that certain costs were not recognized in the amended fiscal impact statement, and that such costs are substantial.