TITLE X
PUBLIC HEALTH

Chapter 125-I
AIR TOXIC CONTROL ACT

Section 125-I:1

    125-I:1 Purpose. – It is declared to be the public policy of the state of New Hampshire and the purpose of this chapter to promote the public health of the state by reducing human exposure to toxic chemicals by regulating releases of toxic chemicals into the ambient air.

Source. 1987, 314:1. 1996, 279:1, eff. July 1, 1996.

Section 125-I:2

    125-I:2 Definitions. –
I. "Air contaminant" means soot, cinders, ashes, any dust, fume, gas, mist (other than water), odor, toxic or radioactive material, particulate matter, or any combination thereof.
II. "Air toxic" means air contaminants designated by the commissioner of the department of environmental services from the organic compounds and metals listed by the United States Environmental Protection Agency in the Code of Federal Regulations, Title 40, Part 261, Subparts C and D and Table 4 of 450/5-86-011a and subsequent updates.
III. "Ambient air" means the unconfined atmosphere that envelops the earth.
IV. "Ambient air limit" means the standard designated pursuant to RSA 125-I:4 that establishes the maximum allowable concentration of emissions of a specific regulated toxic air pollutant at or beyond the compliance boundary.
V. "Commissioner" means the commissioner of the department of environmental services.
VI. "Compliance boundary" means the boundary of the property on which the stationary source is located or an alternate compliance boundary determined by the department in accordance with rules adopted pursuant to this chapter.
VII. "Council" means the air resources council established pursuant to RSA 21-O:11.
VIII. "Department" means the department of environmental services.
IX. "Device" means any burner, furnace, machine, equipment, or article which emits a regulated toxic air pollutant or air contaminant into the ambient air.
X. "Modification" means any physical or operational change in a stationary source or device which increases the amount of a specific regulated toxic air pollutant emitted by such source or device, or which results in the emission of any additional regulated toxic air pollutant.
XI. "Pollution control equipment" means any device that treats, removes, restricts, or otherwise controls the release or discharge of regulated toxic air pollutants that is not vital to normal productions operations.
XII. "Process" means any operation which combines devices, equipment, raw materials, utilities, and manpower for the production of goods, services, energy, pollution control, or other purposes which emits a regulated toxic air pollutant into the ambient air.
XIII. "Reference concentration limit" means an estimate established by the United States Environmental Protection Agency of a daily exposure to the human population, including sensitive subgroups, that is likely to be without an appreciable risk of deleterious noncancer effects during a lifetime.
XIV. "Regulated toxic air pollutant" means any substance or compound emitted into the ambient air by a stationary source and designated a regulated toxic air pollutant pursuant to RSA 125-I:4. Regulated toxic air pollutants are classified as:
(a) Class I, meaning any regulated toxic air pollutant recognized by the United States Environmental Protection Agency as a Group A-Human Carcinogen or Group B-Probable Human Carcinogen, as referenced in 51 Federal Register 34,000 (1986), or otherwise designated a regulated toxic air pollutant-Class I by the commissioner pursuant to rules adopted under RSA 125-I:3.
(b) Class II, meaning any regulated toxic air pollutant other than a regulated toxic air pollutant Class I, which is recognized by the United States Environmental Protection Agency as a Group C-Possible Human Carcinogen, as referenced in 51 Federal Register 34,000 (1986), or otherwise designated a regulated toxic air pollutant-Class II by the commissioner pursuant to rules adopted under RSA 125-I:3.
(c) Class III, meaning any regulated toxic air pollutant other than a regulated toxic air pollutant-Class I or Class II.
XV. "Stationary source" means any building, structure, facility, or installation that emits or may emit a regulated toxic air pollutant or air contaminant into the ambient air.
XVI. "Threshold limit value" means the threshold limit value-time weighted average (TLV-TWA) as set forth in the American Conference of Governmental Industrial Hygienists (ACGIH) 1995 list and as amended thereafter.
XVII. "Uncontrolled emission" means any emission of a regulated toxic air pollutant from a device or process at a stationary source that is not subject to treatment or removal by pollution control equipment prior to being emitted to the ambient air, or is emitted to the ambient air in amounts which have not been limited by conditions in an enforceable permit or document.

Source. 1987, 314:1. 1996, 228:22, eff. July 1, 1996; 279:2, eff. July 1, 1996, at 12:01 a.m.; 279:8, eff. July 1, 1996, at 12:02 a.m.

Section 125-I:3

    125-I:3 Toxic Air Pollutant Control; Exemptions. –
I. The department shall establish a statewide permit system for stationary sources which release regulated toxic air pollutants into the ambient air.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the prevention, control, abatement, and limitation of regulated toxic air pollutant emissions.
III. The following shall be exempt from the provisions of this chapter:
(a) Normal agricultural operations and the application of pesticides regulated pursuant to RSA 430:28 through RSA 430:48.
(b) Emissions of regulated toxic air pollutants resulting from mobile sources and the combustion of virgin petroleum products at stationary sources.
(c) Pursuant to rules adopted under RSA 541-A by the commissioner, those air contaminants and categories of stationary sources whose emissions of regulated toxic air pollutants are adequately regulated under other provisions of state or federal law or, based on available information, pose little risk to human health.

Source. 1987, 314:1. 1996, 228:104, 106, eff. July 1, 1996; 279:3, eff. July 1, 1996 at 12:01 a.m.

Section 125-I:3-a

    125-I:3-a 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, 247:13, eff. Jan. 1, 1997. 2019, 263:3, eff. Jan. 1, 2020.

Section 125-I:4

    125-I:4 Regulated Toxic Air Pollutants. –
I. The following are regulated toxic air pollutants:
(a) Those substances or compounds listed as hazardous air pollutants pursuant to Section 112(b) of the Clean Air Act (42 U.S.C. 7412), as amended; and
(b) Those chemical substances for which a threshold limit value has been established by the American Conference of Governmental Industrial Hygienists as of December 31, 1995, as amended.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, designating each regulated toxic air pollutant as a regulated toxic air pollutant-Class I, a regulated toxic air pollutant-Class II, or a regulated toxic air pollutant-Class III.
III. For each regulated toxic air pollutant, the commissioner shall adopt rules, pursuant to RSA 541-A, designating a short-term and long-term ambient air limit. In establishing ambient air limits under this chapter, the department shall rely on threshold limit values, reference concentration limits, and such other generally accepted scientific data as may be available.
IV. The department shall publish the list of all regulated toxic air pollutants, their classification as a regulated toxic air pollutant-Class I,-Class II or-Class III, and their respective short-term and long-term ambient air limits immediately upon adoption of the rules establishing such classifications and ambient air limits for each regulated toxic air pollutant. Publication of notice of such list shall be made by the department in the New Hampshire Rulemaking Register. Thereafter, the department shall publish annually a complete list of all regulated toxic air pollutants, classifications, and ambient air limits. Any revision to the list of regulated toxic air pollutants or their respective classifications or ambient air limits made prior to the annual publication of such list shall be noticed by publication of notice of the revision by the commissioner in the New Hampshire Rulemaking Register and shall not take effect until such publication of notice has occurred.
V. At any time, or pursuant to petition of any stationary source or affected person, the commissioner may modify the list of regulated toxic air pollutants by adding or deleting any substance or compound from the list, or by establishing or modifying any classification or ambient air limit for such substances or compounds, by adopting rules in accordance with the provisions of RSA 541-A, provided that:
(a) A substance or compound may be added to the list only if there is at least one study that has been conducted in accordance with generally accepted scientific principles that demonstrates that the substance or compound is known to cause or may reasonably be anticipated to cause acute, chronic, mutagenic, reproductive, or developmental health effects in humans as a result of exposure to such substances or compounds.
(b) A substance or compound may be deleted from the list only if there is at least one study that has been conducted in accordance with generally accepted scientific principles that demonstrates that the substance or compound may not reasonably be anticipated to cause acute, chronic, mutagenic, reproductive, or developmental health effects in humans as a result of exposure to such substances or compounds.

Source. 1996, 279:4, eff. July 1, 1996.

Section 125-I:5

    125-I:5 Compliance; Permit Required. –
I. No person shall operate any device or process at a stationary source that emits a regulated toxic air pollutant without a temporary or operating permit issued by the department in accordance with this chapter or RSA 125-C, provided, however, that no permit or permit application shall be required for any device or process at a stationary source exempted under RSA 125-I:3, III, or whose uncontrolled emissions of regulated toxic air pollutants do not exceed ambient air limits at or beyond the compliance boundary and for which no other permit is required under RSA 125-C.
II. Existing devices or processes emitting regulated toxic air pollutants at a stationary source in operation as of the effective date of the rules adopted by the commissioner under RSA 125-I:6, II shall comply with either:
(a) The rules adopted by the commissioner relative to air toxics, including but not limited to rules establishing ambient air limits, in effect immediately prior to the effective date of this section for a period of 3 years following the effective date of this section at which time such stationary sources shall comply with the rules adopted under this chapter relative to regulated toxic air pollutants; or
(b) Rules adopted under this chapter relative to regulated toxic air pollutants at any time, but no later than 3 years following the effective date of this section.
III. All new and modified devices or processes emitting regulated toxic air pollutants at a stationary source shall comply with the rules adopted under this chapter relative to regulated toxic air pollutants.
IV. If the department revises the list of regulated toxic air pollutants or their respective ambient air limits or classifications under RSA 125-I:4, II and III, and as a result of such revision any source of regulated toxic air pollutants is required to obtain or modify a permit under the provisions of RSA 125-I or RSA 125-C, the stationary source shall have 90 days following publication of notice of such final revision in the New Hampshire Rulemaking Register to file a complete application for such permit or permit modification. The department shall include as conditions in any permit issued as a result of a revision to the list of regulated toxic air pollutants a compliance plan and a schedule for achieving compliance based on public health, economic and technical considerations, not to exceed 3 years. Failure to comply with any such compliance plan or schedule of compliance shall be subject to the enforcement provisions of RSA 125-I:8.
V. A person or persons having ownership or control of a stationary source may demonstrate compliance with this chapter and any rules adopted under this chapter by air dispersion analysis or such other techniques as the department designates pursuant to rules adopted by the commissioner in accordance with RSA 541-A. In addition, the department shall establish in rules adopted by the commissioner pursuant to RSA 541-A one or more methodologies by which any stationary source can determine, through testing, calculation, or other methods without air dispersion modeling, whether the existing or proposed emission of any regulated toxic air pollutant will result in an exceedance of an ambient air limit at the source's compliance boundary.

Source. 1996, 279:4; 279:5, eff. Mar. 5, 1997 at 12:01 a.m.

Section 125-I:6

    125-I:6 Rulemaking. –
I. The commissioner shall adopt interim rules as expeditiously as possible but no later than August 31, 1996, relative to:
(a) Procedures and criteria for classifying regulated toxic air pollutants as Class I, II and III-regulated toxic air pollutants.
(b) Procedures and criteria for determining ambient air limits.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, in consultation with the council, as expeditiously as possible but no later than December 31, 1996, relative to:
(a) Procedures and criteria for classifying regulated toxic air pollutants as Class I, II and III-regulated toxic air pollutants.
(b) Procedures and criteria for determining ambient air limits.
(c) Establishment of a list of regulated toxic air pollutants including the classification under RSA 125-I:4, II and short-term and long-term ambient air limits for each regulated toxic air pollutant listed.
(d) Establishment of methodologies for determining by testing, calculation, or other methods without complete air dispersion modeling whether an existing or proposed emission of a regulated toxic air pollutant will exceed the applicable ambient air limit at the source's compliance boundary.
(e) Identification of the air contaminants and categories of stationary sources that are exempt from the provisions of this chapter.
III. The commissioner shall adopt rules pursuant to RSA 541-A, in consultation with the council, as expeditiously as possible but no later than June 30, 1997, relative to:
(a) Procedures and criteria for determining compliance with ambient air limits established pursuant to this chapter.
(b) Procedures for petitioning the department to revise the list of regulated toxic air pollutants in accordance with the provisions of RSA 125-I:4, V.
(c) Procedures and criteria for establishing an alternate compliance boundary for a stationary source.
IV. Rules adopted by the commissioner relative to the air toxic control program in effect on July 1, 1996, shall remain in effect until the rules expire, or are amended or repealed.

Source. 1996, 279:4, eff. July 1, 1996.

Section 125-I:7

    125-I:7 Inspection. –
I. For the purpose of determining compliance with this chapter, any rule adopted by the commissioner relative to this chapter, or any condition of a permit issued under RSA 125-C relative to the emission of a regulated toxic air pollutant and any other air contaminant, an employee or authorized representative of the department may, upon presentation of appropriate credentials and at any reasonable time:
(a) Enter any stationary source.
(b) Inspect and photograph the device or source which produces or controls emissions of regulated toxic air pollutants and other air contaminants, and obtain samples of materials processed in and generated from the devices and sources at the facility.
(c) Inspect and copy records, information or test results relating to air pollution, air contaminants and devices or sources which produce or control emissions of regulated toxic air pollutants and other air contaminants.
II. For the purpose of determining the type and quantity of regulated toxic air pollutants and other air contaminants being emitted from any stationary source, the commissioner may require the stationary source to maintain and submit production data, material usage records, equipment manufacturer's specifications, material safety data sheets and such other similar records, data and information.
III. Any records, data, or information obtained by or submitted to the department or any other agency of the state under this chapter which, in the judgment of the department, constitutes a trade secret, shall not be disclosed to the public without notice to the owner of the trade secret and an opportunity for a hearing. The protection against unauthorized disclosure of trade secret information under this chapter shall not exceed that permitted under RSA 91-A. The department may provide information relating to trade secrets to the Environmental Protection Agency, provided that the Environmental Protection Agency guarantees the same degree of confidentiality afforded by the department.

Source. 1996, 279:4, eff. July 1, 1996; 279:9, eff. July 1, 1996 at 12:02 a.m.

Section 125-I:8

    125-I:8 Enforcement. –
I. Whenever the commissioner or the commissioner's authorized representative finds that any device or source of air pollution has resulted in a violation of any of the provisions of this chapter or any rules in force hereunder, or any condition in a permit issued under this chapter, the commissioner shall issue a notice of violation and, where appropriate, an order of abatement establishing a compliance schedule with which the device or source 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 council before the expiration of the 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 of such order. The council's decision shall become final 10 days after it is issued. Appeals from decisions of the air resources council shall be made in accordance with the provisions of RSA 541. Upon a finding by the commissioner, in consultation with the department of health and human services, that there is an imminent and substantial endangerment to the public health or welfare, the commissioner shall issue an order of abatement requiring immediate compliance. 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 the order.
II. Any violation of the provision of this chapter, or of any rules or orders issued under it, or of any condition in a permit 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 penalty of not more than $25,000 per 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, or any condition of a permit 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-I:8, III. Each day of violation shall constitute a separate offense.

Source. 1996, 279:4, eff. July 1, 1996; 279:10, eff. July 1, 1996 at 12:02 a.m.