At its meeting on January 18, 1991, 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 90-334 of the Commissioner of the Department of Environmental Services (Commissioner) containing rules relative to filtration and disinfection of surface drinking water supplies. The Commissioner responded by letter dated February 14, 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 90-334. 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:

The following outlines the basis upon which the final objection has been entered:

1. Part 1, Article 28-a

The Committee objected that, pursuant to RSA 541-A:3-e, IV(a) and Committee Rule 401.01, the rules in this final proposal are beyond the authority of the Commissioner to the extent that they violate Part 1, Article 28-a of the New Hampshire Constitution.

The rules of this proposal specify the requirements for filtration and disinfection of surface drinking water supplies. The explicit authority for imposing such rules can be found in RSA 485:3, V, which had been first enacted as RSA 148-B:5, V, in 1988. The Committee determined that the program was created after November of 1984, and therefore its requirements trigger the provisions of Part 1, Article 28-a of the New Hampshire Constitution. Pursuant to that provision,

The Committee determined that Part 1, Art. 28-a, requires that, unless a political subdivision takes the positive step to approve for funding those programs or responsibilities which are new, modified, or expanded since November, 1984, such programs or responsibilities are unconstitutional as applied to such political subdivisions.

In the-response, the Asst. Commissioner indicated that it is the position of the Commissioner that Art. 28-a does not relate to "proprietary functions" and that "municipalities must be treated no differently than other regulated persons as it concerns what are termed 'proprietary' undertakings." The Asst. Commissioner also indicated that the Department "administers the federal Safe Water Drinking Act (SWDA) under the terms of an application for primary enforcement responsibility approved by the EPA on August 18, 1978. New Hampshire must adopt drinking water regulations which are no less stringent than federal regulations."

In the view of the Committee, Art. 28-a makes no distinction between governmental and proprietary functions, and is applicable to either type of function if state action necessitates that the political subdivisions will have to increase their expenditures. The Committee also concluded that the date of any agreement between the EPA and the state is irrelevant to the analysis of the applicability of Art. 28-a to these rules.

2. Env-Ws 315.31(c) and Env-Ws 325.31(e)

The Committee objected that rules Env-Ws 315.31(c) and Env-Ws 325.31(e) 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 and conflicting with RSA 541-A:2, IV, by specifying a validity period of less than 6 years.

Rules Env-Ws 315.31(c) and Env-Ws 325.31(e) provide that certain requirements "shall apply to unfiltered systems until December 30, 1991," certain other requirements "shall apply to filtered systems until June 29, 1993," and still other "unfiltered systems that the division has determined shall install filtration pursuant to Env-Ws 380.04, until June 29, 1993." Rules are valid for a period of 6 years, pursuant to RSA 541-A:2, IV, and the only way an agency can change the period of validity of a particular rule is to initiate a rulemaking proceeding either to repeal or amend the rule. However, the express language of the two rules cited above makes then valid for less than one year in some instances, and less than 3 years in others.

3. Env-Ws 355.01(c)

The Committee objected that rule Env-Ws 355.01(c) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is 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-Ws 355.01(c) states that "the wording below shall be used when there is a violation of the treatment technique requirements for filtration and disinfection in Part Env-Ws 380," and then provides a long paragraph in quotation marks. The rules contain no indication of who uses this language, or how it will be used.

4. Env-Ws 380.019d) and (f)

The Committee objected that rules Env-Ws 380.01(d) and (f) violate Committee Rules 403.01(d), 403.02(c) and 402.02 as it is 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.

There were many rules in the final proposal that used the abbreviations "HPC" and "NTU." The Committee concluded that these terms are not common and used in everyday language, but are technical in nature, and needed to be defined. The Commissioner responded by adding these rules, which provide that the abbreviations "HPC" and "NTU" mean "heterotrophic plate count" and "nephelometric tubidity [sic] units," respectively. However, even though the Commissioner has identified what the abbreviations stand for, the rules still fail to define what the terms actually mean.

5. Env-Ws 380.02(i) and (k)

The Committee objected that rules Env-Ws 380.02(i) and (k) 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-Ws 380.02(i) provides that 'flocculation' means a process to enhance agglomeration or collection of smaller floc particles." Rule Env-Ws 380.02(k) states that, "high turbidity event" means a series of consecutive days during which at least one turbidity measurement each day exceeds 5 NTU." The Committee concluded that "floc particles," and "agglomeration" were terms that were not of common understanding and should be defined. Rules are required to be written in a clear and coherent manner using words with common and everyday meanings, pursuant to RSA 541-A:3-h. Rules are also required to be written in a clear and precise manner free from ambiguities of language or citation, pursuant to Ls-A 402.01. The Committee determined that rules are deficient if they are understood only by the targeted segment of the regulated community.

6. Env-Ws 380.03(g)

The Committee objected that rule Env-Ws 380.03(g) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is 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-Ws 380.03(g) provides that "a management plan shall be submitted to the division as part of any proposal for installation of filtration of surface water. The management plan shall demonstrate the financial and administrative capability of the water system to construct the filtration facilities and to operate the facilities on a continuous basis. Adequacy of this plan in light of the capabilities of the water system shall be a criterion for approval of the filtration proposal by the division." The Committee concluded that the language of the rule merely specifies what the goals of the management plan are, but is unclear what will be required of applicants to prove that the goals have been attained. The Committee also concluded it was unclear what the plan itself was required to include or what criteria and procedure would be used to determine "adequacy." Additionally, it is unclear how the "criterion" of a plan's adequacy will impact the overall decision to approve the filtration proposal.

7. Env-Ws 380.04(f)(5) and (f)(5)a.

The Committee objected that rules Env-Ws 380.04(f)(5) and Env-Ws 380.04(f)(5)a. 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.

Rules Env-Ws 380.04(f)(5) and Env-Ws 380.04(f)(5)a. state that a decision will be made by the Division relative to a system's watershed control program's adequacy "based on" the criteria that follow in the rule. The Committee concluded that both rules were unclear as to how the criteria would relate to the decision, since the rules did not indicate how application of the criteria would make it more or less likely that the control program will be determined to be "adequate."

8. Env-Ws 380.26

The Committee objected that rule Env-Ws 380.26 violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is 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-Ws 380.26 concerns "variances and exemptions." Paragraph (a) states that "no variances from the requirements of Env-Ws 380 shall be permitted." Paragraph (b) states that "no exemptions from the requirements of Env-Ws 380.15(f)(5) and Env-Ws 380.15(g)(2) shall be permitted." The Committee concluded that the Department has failed to distinguish how a variances is different from an "exemption" under these rules. The Committee also concluded that paragraph (b) did not require or prohibit anything that was not already required or prohibited under paragraph (a).

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.