TITLE X
PUBLIC HEALTH

Chapter 125-D
ACID RAIN CONTROL ACT

Section 125-D:1

125-D:1 Purpose. –
I. The general court hereby finds that acid deposition of sulfur and nitrogen containing compounds, commonly referred to as "acid rain," is occurring in the state of New Hampshire. The general court further finds that acid rain poses a significant adverse threat to the state's public health and welfare and to the natural environment by degrading natural ecosystems, including fish and wildlife. In addition, increasing evidence suggests that acid rain affects the New Hampshire economy by reducing the growth rate and productivity of the state's forest resources.
II. The general court also finds that although the major emission sources of acid rain precursors are located in the midwestern United States, sources within the state of New Hampshire also contribute to acid deposition in New Hampshire and in our neighboring states of Maine and Massachusetts. Therefore, it is incumbent upon the people of New Hampshire to take the initiative to reduce their share of the deposition to reasonable levels.
III. The general court acknowledges that the New England governors in May of 1984 endorsed as an interim measure the implementation of a sulfur dioxide emission cap in each New England state for both the industrial and utility sectors of the economy.
IV, V. [Repealed.]

Source. 1985, 328:1. 1993, 118:2, eff. July 16, 1993.

Section 125-D:2

125-D:2 Definitions. –
I. "Acid deposition" means that wet or dry deposition from the atmosphere of chemical compounds, usually in the form of rain or snow, having the potential to form an aqueous compound with a pH level lower than the level considered normal under natural conditions.
I-a. "Department" means the department of environmental services.
II. "Commissioner" means the commissioner of the department of environmental services.
III. "Baseline emissions" means the total sulfur dioxide emissions in tons per calendar year averaged over the period 1979 through 1982 from all major sources.
IV. "Governor" means the governor of the state of New Hampshire.
V. "Major source" means a facility or plant which emits 100 tons or more per year of a pollutant.
VI. "Emission rate" means the pounds of sulfur dioxide emitted per million BTU input.
VII. "Average emission rate" means the weighted average on a BTU input basis of the emission rates of a major source, all major sources under a single ownership, or some other specified group of major sources during any calendar year.
VIII. "Baseline average emission rate" means the weighted average on a BTU input basis of the emissions rates of a specified group of major sources over the period 1979 through 1982.
IX. "Maximum total heat input capacity" means the designed gross heat input capacity of a major source in millions of BTU per hour.
X. "Average annual emissions" means the total sulfur dioxide emissions in tons per calendar year averaged over any consecutive 4-year period from a specified group of major sources.
XI. "Annual emissions" means the sulfur dioxide emissions from a major source in tons during any calendar year.

Source. 1985, 328:1. 1986, 202:6, I(h). 1990, 172:1-4. 1996, 228:20, eff. July 1, 1996.

Section 125-D:3

125-D:3 Acid Deposition Control Program. –
I. The department shall develop an acid deposition control program which shall achieve a 25 percent reduction of sulfur dioxide from the baseline emissions by December 31, 1991. The program shall include the following requirements:
(a) All major sources of sulfur dioxide in operation during the baseline period shall be divided into 2 groups:
(1) Sources with a maximum total heat input capacity equal to or greater than 1,000 MBTU/HR; or
(2) Sources with a maximum total heat input capacity less than 1,000 MBTU/HR.
(b) For the calendar year ending December 31, 1991, and for each year thereafter, except as provided by subparagraph I(f), each major source specified in subparagraph I(a)(1) shall have annual emissions which are 25 percent less than its portion of the baseline emissions.
(c) Beginning with the 4-year period 1988-1991 and each consecutive 4-year period thereafter, the major sources specified in subparagraph I(a)(2) shall have average annual emissions which are 25 percent less than their portion of the baseline emissions.
(d) Failure to comply with either subparagraph I(b) or I(c) shall be addressed solely within the heat input capacity group to which each of the subparagraphs applies.
(e) For the calendar year ending December 31, 1991, and each year thereafter, except as provided by subparagraph I(f) each major source specified in subparagraph I(a)(2) shall have an average emission rate which is 25 percent less than the baseline average emission rate determined for this heat input capacity group.
(f) For 2 or more major sources under a single ownership, alternatives to compliance with subparagraphs I(b) and I(e) are as follows:
(1) With regard to subparagraph I(b), the annual emissions of all major sources under single ownership may be combined to demonstrate that their total annual emissions are 25 percent less than their total portion of the baseline emissions; and
(2) With regard to subparagraph I(e), the emission rates of all major sources under single ownership may be averaged on a BTU input basis to demonstrate compliance with the required average emission rate.
II. In implementing the program established in paragraph I, the commissioner shall:
(a) Prepare an emissions and heat input capacity inventory for major sources of sulfur dioxide during the baseline period 1979 through 1982 with the emission inventory to include a determination of the baseline emissions and the baseline average emission rate for the major sources specified in subparagraph I(a)(2).
(b) Adopt rules, pursuant to RSA 541-A, which shall establish a process for monitoring compliance with subparagraph I(c). The process shall include a determination of average annual emissions, an analysis of trends and causal factors, and a forecast of future emissions. If the commissioner determines that such emissions are 95 percent or more of the emission limit, the commissioner shall submit a report to the governor, the president of the senate and the speaker of the house recommending proposed legislation to protect the emission limit.
(c) Adopt rules, pursuant to RSA 541-A, which shall provide credit for reductions in total emissions or emission rates made during the baseline period when such reductions result from verifiable energy efficiency or fuel switching programs.

Source. 1985, 328:1. 1986, 202:6, I(h). 1990, 172:5. 1993, 118:1. 1996, 228:21, 110, eff. July 1, 1996.

Section 125-D:4

125-D:4 Administrative Fines. –
The commissioner of the department of environmental services, after notice and hearing pursuant to RSA 541-A, may impose an administrative fine not to exceed $4,000 for each offense upon any person who violates any provision of this chapter, any rule adopted pursuant to this chapter, or any permit or order issued pursuant to this chapter; or upon any person who makes or certifies a material false statement relative to any document or information which is required to be submitted to the department pursuant to this chapter or any rule adopted pursuant to this chapter. Rehearings and appeals from a decision of the commissioner under this section shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties under this chapter. The proceeds of administrative fines imposed pursuant to this section shall be deposited in the general fund.
I. Notice and hearing prior to the imposition of an administrative fine shall be in accordance with RSA 541-A and procedural rules adopted by the commissioner pursuant to RSA 541-A:16.
II. The commissioner shall determine fines in accordance with RSA 125-C:15, I-b(b) and (d).
III. The commissioner may assess an additional fine for repeat violations.

Source. 1996, 247:12, eff. Jan. 1, 1997. 2019, 263:2, eff. Jan. 1, 2020.

Section 125-D:5

125-D:5 Enforcement. –
I. Whenever the commissioner or the commissioner's authorized representative finds that any major source of sulfur dioxide has resulted in a violation of any of the provisions of this chapter or any rules in force hereunder, the commissioner shall issue a notice of violation and, where appropriate, an order of abatement establishing a compliance schedule with which the major source of sulfur dioxide shall comply. Any order of abatement shall become final and enforceable by the commissioner within 30 days of its issuance unless an appeal is filed with the air resources council before the expiration of said 30-day period. The council shall hold a hearing on any such appeal promptly, and shall thereafter issue a decision upholding, modifying, or abrogating the commissioner's order of abatement or any part thereof. The council's decision shall become final 10 days after it is issued. Upon a finding by the commissioner that there is an imminent and substantial endangerment to the public health or welfare or the environment, the commissioner shall issue an order of abatement requiring immediate compliance and the order shall be final and enforceable upon issuance, but may be appealed to the council within 30 days of its issuance, and the council may, after hearing, uphold, modify, or abrogate such order.
II. Any violation of the provisions of this chapter, or of any rule adopted or order issued under it, shall be subject to enforcement by injunction, including mandatory injunction, issued by the superior court upon application of the attorney general. Any such violation shall also be subject to a civil forfeiture to the state of not more than $25,000 for each violation, and for each day of a continuing violation.
III. Any person who violates any of the provisions of this chapter, or any rule adopted or order issued under this chapter shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
IV. Notwithstanding RSA 651:2, any person may, in addition to any sentence of imprisonment, probation, or conditional discharge, be fined not more than $25,000 if found guilty of any violation pursuant to RSA 125-D:5, III. Each day of violation shall constitute a separate offense.

Source. 1998, 146:3, eff. June 8, 1998.

Section 125-D:6

125-D:6 Variances. –
I. Upon application, and after a hearing, the commissioner may suspend the enforcement of the whole or any part of this chapter or of any rule adopted hereunder in the case of any person who shall show that the enforcement thereof would produce serious economic hardship on such person without equal or greater benefits to the public.
II. In determining under what conditions and to what extent the variance may be granted, the commissioner shall give due recognition to the progress which the person requesting such variance shall have made in eliminating or preventing emissions sources of acid depositions; the character and degree of injury to, or interference with, the health and physical property of the people; and the social and economic value of the source of emissions. In such cases, the commissioner shall consider the reasonableness of granting a variance conditioned on the person's effecting a partial abatement of emissions or a progressive abatement thereof or such other circumstances as the commissioner may deem reasonable. No variance shall be granted to any person applying therefor who is causing air pollution which creates a danger to public health, welfare, or safety.
III. Any variance granted under this section shall be granted for such period of time, not exceeding one year, as the commissioner shall specify. No variance shall be construed to relieve the person receiving it from any liability imposed by law for the commission or maintenance of a nuisance.