CHAPTER 183
HB 1534 – FINAL VERSION
24Mar2010… 0918h
04/28/10 1558s
13May2010… 2034eba
2010 SESSION
08/03
HOUSE BILL 1534
AN ACT relative to the issuance of air permits and certain fees relative to air permits.
COMMITTEE: Science, Technology and Energy
This bill makes certain changes to air permit requirements.
This bill is a request of the department of environmental services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24Mar2010… 0918h
04/28/10 1558s
13May2010… 2034eba
10-2231
08/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to the issuance of air permits and certain fees relative to air permits.
Be it Enacted by the Senate and House of Representatives in General Court convened:
183:1 Definitions. Amend the introductory paragraph of RSA 125-C:2 to read as follows:
Terms used in this chapter shall [shall] be construed as follows unless a different meaning is clearly apparent from the language or context:
183:2 Permit Required. Amend RSA 125-C:11 to read as follows:
125-C:11 Permit Required.
I. The construction, installation, operation, or [material] modification of any device or non-Title V source as defined under RSA 125-C:2, and as further defined by rules adopted by the commissioner shall be prohibited unless the source possesses a temporary permit or [final] operating permit whether a permit-by-notification, general permit, or an individual operating permit issued by the commissioner. The commissioner may by rule exempt certain devices or non-Title V sources from the requirements of this section.
I-a. The construction, installation, operation, or modification of an affected source shall be prohibited unless the affected source possesses and complies with a temporary permit, general permit, or individual operating permit [to operate] issued by the commissioner in accordance with the requirements of the Clean Air Act. The term of the general permit or permit to operate shall not exceed 5 years.
II. A temporary permit, which may contain conditions, shall be required prior to commencement of construction or installation of any new or modified device or non-Title V source[, and] except for those devices or non-Title V sources which are authorized to construct and operate pursuant to a permit-by-notification or a general permit. A temporary permit shall be in effect until [a final] it expires, an operating permit is issued, or until sooner revoked by the commissioner. Such permit shall contain the emission limits the device or non-Title V source is required to meet, and shall be issued by the commissioner upon a finding that the device or non-Title V source will meet such limits and will not result in a violation of any air quality standard or regulation in force under this chapter.
III. [A final] An individual operating permit, which may contain conditions, shall be issued with respect to a device or non-Title V source for which a temporary permit is in effect, upon a finding by the commissioner, following operational testing, where required, that the device or non-Title V source meets the applicable emission limits and that its operation will not result in a violation of any air quality standard or regulation in force under this chapter.
III-a. [Repealed.]
III-b. A general permit, which may contain certain conditions, may be issued with respect to a Title V source category if the commissioner finds that there is more than one stationary source, area source, or device in the same category and the stationary sources, area sources, or devices in that category are all subject to the same regulatory requirements.
III-c. The commissioner may adopt rules providing for a permit-by-notification with respect to a source category, provided that the commissioner finds that there is more than one device or non-Title V source in the source category, and that the devices or non-Title V sources in that category are all subject to the same regulatory requirements.
IV. A temporary permit, which may contain conditions, shall be required prior to commencement of construction or installation of any new or modified affected source, except for those affected sources which are authorized to be constructed pursuant to a general permit. The applicant shall be required to conduct preconstruction or premodification review procedures prior to commencement of construction of any new major stationary source, device, or modification to any existing major stationary source or device. Such procedures shall be sufficient to allow the commissioner to make determinations that the proposed construction or modification will not cause or contribute to a failure to attain or maintain any ambient air quality standard, significant deterioration of air quality, or a violation of any applicable emission limitation or standard of performance. [Prior to commencement of construction or modification, the applicant shall submit the required information to the commissioner.] Such preconstruction and premodification review requirements shall be no less stringent than, and shall require that no permit shall be issued for a source unless such source meets all the requirements for review and for obtaining a permit prescribed in the Clean Air Act.
V. The applicant for a permit to operate shall be required to conduct preconstruction or premodification review procedures prior to commencement of construction of any affected source. Such procedures shall be sufficient to allow the commissioner to make determinations that the proposed construction or modification will not cause or contribute to a failure to attain or maintain any ambient air quality standard, significant deterioration of air quality, or a violation of any applicable emission limitation or standard of performance. The applicant shall submit the required information to the commissioner prior to the commencement of construction or modification. Such preconstruction review and premodification review requirements shall be no less stringent than those prescribed in the Clean Air Act, 42 U.S.C. section 7401 et seq., as amended.
183:3 Administrative Requirements. Amend RSA 125-C:12 to read as follows:
125-C:12 Administrative Requirements.
I. Applications for permits shall be upon such forms, and shall include such information, as the commissioner requires under rules adopted pursuant to RSA 541-A in order to determine the nature of the air pollution potential for such device or non-Title V source.
II. The commissioner shall act upon a permit application within a reasonable period of time. Prior to such action, the commissioner shall provide notice of the application by publication in at least one newspaper of general circulation. The commissioner shall also provide an opportunity for a hearing to interested persons. The requirement of public notice and hearing shall not apply to such devices or sources that will have, in the opinion of the commissioner, an insignificant effect on air quality. The commissioner may adopt rules relative to the requirements of public notice and hearing for such devices or sources.
III. Any person aggrieved by the decision of the commissioner granting or denying a permit application may within 10 days of the decision file an appeal with the air resources council. The air resources council shall hold a hearing on any such appeal promptly, and shall thereafter issue a decision upholding, modifying, or abrogating the commissioner’s decision.
IV. As a condition of any permit or authorization required or any requested applicability determination, the commissioner may require payment of a fee to cover the reasonable costs of reviewing and acting upon the application for a permit [and of implementing or enforcing the terms and conditions of a permit. The applicant shall pay any cost or expense associated with public notices or notifications in the permit process].
IV-a. The applicant shall pay any cost or expense associated with public notices or notifications in the permit process.
IV-b. As a condition of any permit or authorization required, the commissioner may require payment of an annual emissions fee sufficient to cover the costs of implementing or enforcing the permit program authorized by this chapter including:
(a) The costs of reviewing and acting upon any permit renewal;
(b) Emissions and ambient monitoring, for those costs incurred under the permitting program;
(c) Preparing generally applicable rules or guidance;
(d) Modeling, monitoring, analyses, and compliance demonstrations;
(e) Preparing inventories and tracking emissions; and
(f) Inspections and enforcement.
IV-c. In lieu of the annual emissions fee specified in paragraph IV-b, as a condition of any permit or authorization required, the commissioner may require payment of a one-time fee sufficient to cover the costs of implementing or enforcing the permit program authorized by this chapter including the provisions specified in paragraph IV-b.
IV-d. The commissioner shall adopt rules relative to a fee schedule for applicants and the collection of fees under the schedule. All fees and monetary grants, gifts, donations, or interest generated by these funds shall be deposited with the state treasurer in a special nonlapsing fund to be known as the air resources fund and shall be continually appropriated to the department for the administration of this chapter.
V. [As a condition of any permit to operate under RSA 125-C:11, I-a, the commissioner may require payment of a fee to cover the reasonable costs of reviewing and acting upon the application for a permit to operate, permit renewal, and permit modification of an affected source, and of implementing or enforcing the terms and conditions of an affected source permit. The applicant shall pay any cost or expense associated with public notices or notifications in the permit process. The commissioner shall adopt rules relative to a fee schedule for applicants and the collection of fees under the schedule. Funds] Fees required to be collected [by the commissioner] from affected sources by the Clean Air Act as authorized under this [paragraph from permit fees] section shall be deposited in the air resources fund, shall be accounted for separately, and shall be used by the commissioner for the establishment and operation of a statewide system of permitting for the construction, operation, or modification of any new or existing affected source.
183:4 Criteria for Denial; Suspension or Revocation; Modification. Amend RSA 125-C:13 to read as follows:
125-C:13 Criteria for Denial; Suspension or Revocation; Modification.
I. The commissioner shall deny an application for [a temporary or final] any permit or authorization if, on the basis of evidence available to the commissioner, the commissioner determines:
(a) That the device or non-Title V source for which the permit or authorization is sought will result in a violation of any standard or rule in force under this chapter; or
(b) That the device or non-Title V source will contribute disproportionately to pollution of the air in comparison with other similar sources able to perform the same function that are currently available; or
(c) That the device or non-Title V source is located in a “clean air” area designated by state or federal rules or regulations and will or is reasonably likely to cause significant deterioration of the existing air quality in a part of the area.
II. The commissioner may suspend or revoke any [temporary or final] permit or authorization issued hereunder if, following a hearing, the commissioner determines:
(a) That the permit holder or registrant has committed a violation of this chapter or any rule, order, or permit conditions in force and applicable to it; or
(b) That emissions from the device or non-Title V source to which the permit applies, alone or in conjunction with other sources of the same pollutants, presents an immediate danger to the public health.
III. The commissioner may order modification of any source of air pollution holding a valid permit issued under this chapter in the event that the commissioner determines, following a hearing:
(a) That the device or non-Title V source to which the permit applies fails to meet existing emission limits established by state or federal rule or regulation;
(b) That the device or non-Title V source is resulting or is reasonably likely to result in a violation of an air quality standard in force.
IV. The commissioner may terminate, modify, revoke, or reissue for cause any permit [to operate] or authorization issued to an affected source prior to expiration of such permit consistent with the requirements of the Clean Air Act.
183:5 Repeal. RSA 125-C:2, IX relative to the definition of material modification, is repealed.
183:6 Cross Reference Change. Amend RSA 125-C:4, I(i) to read as follows:
(i) Fees for permit application and review, as authorized by RSA [125-C:12, IV] 125-C:12, IV-d.
183:7 Cross Reference Change. Amend RSA 6:12, I(b)(34) to read as follows:
(34) Moneys received under RSA [125-C:12, IV] 125-C:12, IV-d and V which shall be credited to the air resources fund established in RSA [125-C:12, IV] 125-C:12, IV-d.
183:8 Material Modification. Amend RSA 125-C:6, XIV to read as follows:
XIV. Establishing and operating a statewide system under which permits shall be required for the construction, installation, operation, or [material] modification of air pollution devices and sources, which system shall be established pursuant to RSA 125-C:11 and the sections which follow. The authority vested in the commissioner by this section shall include the power to delay or prevent any construction, modification, or operation of said air pollution sources and modifications which, in the opinion of the commissioner, would cause the ambient air pollution level in the locality of such construction, modification, or operation to exceed limits for ambient concentrations established by the New Hampshire state implementation plan adopted pursuant to the Clean Air Act as amended, or which construction, modification, or operation would, in the opinion of the commissioner, violate any provision of any land use plan established by the New Hampshire state implementation plan;
183:9 Material Modification. Amend RSA 125-C:10-b, II to read as follows:
II. Except as provided in paragraph VII, the construction, installation, operation, or [material] modification of any device located at an affected source that will combust any material shall be prohibited without first applying for and obtaining a permit from the department that establishes emission limitations for such device based on best available control technology for controlling any particulate matter, mercury, or dioxin emissions from such device. Any material to be combusted in such device that is not an exempt fuel shall be certified as complying with standards established by the department. As part of the application for a permit, the affected source shall demonstrate that such standards and certification shall be complied with during facility operation. The permit shall contain inspection, testing, and reporting requirements to ensure such standards are met. The permit shall establish procedures for sampling and testing appropriate to the material to be combusted using US EPA SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, and applicable American Society for Testing and Materials sampling methods or alternate sampling and testing methods approved by the department.
183:10 Material Modification. Amend RSA 125-C:10-b, IV to read as follows:
IV. Once the department has established an emission limitation for one or more air contaminants under paragraph II for a device based on best available control technology, no further best available control technology determination for the emission of such air contaminant or air contaminants from such device shall be required for such period of time as specified in rules of the department, unless there is a [material] modification of the device.
183:11 Material Modification. Amend RSA 125-C:10-b, VI to read as follows:
VI. If, prior to the effective date of this section, the department made under other authority a best available control technology determination for any air contaminant specified in paragraph II for any existing device and established in a permit issued pursuant to this chapter an emission limitation for such air contaminant, then no determination of best available control technology pursuant to paragraph II for such air contaminant from such device shall be required for such period of time as specified in rules of the department, unless there is a [material] modification of the device.
183:12 Material Modification. Amend RSA 125-C:10-b, VII(e) to read as follows:
(e) A device at an affected source that, on the effective date of this section, routinely combusts any material other than a material specified in subparagraph (c) under a permit issued by the department, unless there is later a [material] modification of such device; or
183:13 Effective Date. This act shall take effect upon its passage.
Approved: June 21, 2010
Effective Date: June 21, 2010