Certified Final Objection No. 92 of the
Joint Legislative Committee on Administrative Rules
At its meeting on April 18, 1997, 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 97-011 containing proposed rules Env-Ws 1101-05 of the Department of Environmental Services (Department) relative to public swimming pools, spas, water slides and special recreation pools. The Department responded by letter dated May 12, 1997, received by the Office of Legislative Services on May 13, 1997.
At its meeting on July 18, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 97-011. 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 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:
New Hampshire Constitution Part 1, Article 28-a
The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Final Proposal 97-011 is beyond the authority of the Department, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states 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.
The Committee determined that the proposed rules contain new requirements which will require expenditures by all entities, including political subdivisions, which operate public bathing facilities. While the Committee noted that other rule amendments would lower electrical costs for operators of swimming pools, the Committee could not conclude that the rules would not produce increased costs for some political subdivisions. Therefore, the Committee objected that, to the extent Final Proposal 97-011 imposes new, modified or expanded requirements, it violates Pt. 1, Art. 28-a wherever such requirements will require increased expenditures by political subdivisions without either a vote by the political subdivision to approve funding for compliance or funding by the state for such compliance.
The Committee objected that the following proposed rules are beyond the authority of the Department, pursuant to Committee Rule 401.01(c), and contrary to legislative intent, pursuant to Committee Rule 402.01(b), by being inconsistent with RSA 485-A:1:
Env-Ws 1103.09 Env-Ws 1105.01(i)(2)
Env-Ws 1103.11(f)(3) Env-Ws 1105.01(j)
Env-Ws 1104.03(a)(3) and (7) Env-Ws 1105.02(a)
Env-Ws 1104.03(c)-(e) Env-Ws 1105.02(c)-(g)
Env-Ws 1104.04 Env-Ws 1105.03(b)(3)
Env-Ws 1105.01(a)-(g) Env-Ws 1105.04(a)-(e)
RSA 485-A:1 states:
The purpose of this chapter is to protect water supplies, to prevent
pollution in the surface and groundwaters of the state and to prevent
nuisances and potential health hazards. In exercising any and all
powers conferred upon the department of environmental services
under this chapter, the department shall be governed solely by criteria
relevant to the declaration of purpose set forth in this section.
While RSA 485-A:26 authorizes rules relative to safety standards to protect persons using swimming pools and bathing places open to the public, the Committee determined that such authority is limited by RSA 485-A:1. The Committee determined that the indicated rules exceeded the scope expressed in RSA 485-A:1 by imposing health and safety requirements not directly related to contamination of water or exposure to contaminated water.
The Committee determined that Env-Ws 1103.02 is, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:3, and RSA 541-A:22, I, and is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement as described below.
Env-Ws 1103.02 contains requirements regarding submission of swimming pool plans and specifications to the Department for approval. Paragraph (d) of the section states that the plans and specifications shall be approved if they meet specified criteria. However, the Committee determined that the section is unclear and allows requirements to be set outside the rulemaking process because it does not state what procedures apply in the instance of a denial. In particular, the Committee determined that the section does not specify whether there will be a written notice of the denial that specifies the deficiencies in the plan, whether there is an opportunity for an appeal of the decision, and if so, whether this includes the opportunity for a hearing.
The Committee determined that Env-Ws 1104.03(a)(1) is, pursuant to Committee Rule 403.02(c), contrary to the public interest by not being capable of uniform enforcement.
The rule prohibits persons with communicable diseases, and persons with minor health problems such as a fever, cough, cold or eye inflammation, from entering public bathing places. The Committee determined that it would be very difficult for the operator of the public bathing place, or the Department, to be aware of a violation of this rule. Therefore, the Committee determined that the rule cannot be uniformly enforced.