HB 1421

I. Requires an investigation by the department of environmental services prior to issuing a permit to discharge pollutants into the air.

III. Restricts incinerators from operating within 5 miles of any residence, church, school, park, drinking water source, or hospital.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subparagraph; Rulemaking. Amend RSA 125-C:4, I by inserting after subparagraph (n) the following new subparagraph:

(o) Best available control technology specifications for affected sources that are subject to RSA 125-C:10-a.

2 New Section; Best Available Control Technology. Amend 125-C by inserting after section 10 the following new section:

I. Except as provided in paragraph II, no person shall install, construct, or modify an affected source that will combust any material other than those described in RSA 125-I:3, III, or any rule adopted thereunder, or RSA 125-C:6, VI-a, without first obtaining a permit that requires the installation of the best available control technology as defined by rule adopted by the department.

II. Paragraph I shall not apply to an affected source that is subject to a more stringent performance, technology, or emission guideline or standard promulgated by the United States Environmental Protection Agency pursuant to either section 111 or section 112 of the Clean Air Act.

III. Paragraph I shall apply to any affected source that has obtained an existing or modified permit, but which has not commenced combustion under such permit as of the effective date of this section.

3 Air Pollution Control: Permit Notification. RSA 125-C:12, II is repealed and reenacted to read as follows:

II.(a) The commissioner shall act upon a permit application within a reasonable period of time. Prior to such action, the commissioner shall provide written notice of the application, on 3 separate days, in at least one daily and one weekly newspaper of general circulation in the town where the facility is located. Written notice shall also be provided by mail to the town in which the facility is located, which shall include, but not be limited to, notice to the selectman's office, planning commission and conservation commission. Written notice shall also be provided by mail to all abutters and the surrounding residences by certified mail with return receipt. The commissioner shall hold a public hearing on the permit application. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the requirements of public notice and hearing for such devices or sources.

(b) The public notice shall list all significant air toxics as defined or regulated under RSA 125-I to be emitted and the emission levels per year at the requested level of approval. The term "significant" shall be defined by the department by rule adopted under RSA 541-A.

(1) "Abutter" means any property bordering the applicant's property. If a bordering property is owned or controlled by an entity associated with the applicant, then the associated property shall be deemed to be the same as the applicant property for the purpose of notification of abutters.

(2) "Surrounding residences" means no fewer than 10 separate residential property owners located in closest proximity to the applicant's facility.

(d) No application shall be accepted until the applicant provides certification, signed by a board of selectman, mayor, city council, or county commissioner, that the application complies with all local zoning and planning laws and regulations.

4 New Paragraph; Compliance. Amend RSA 125-I:5 by inserting after paragraph V the following new paragraph:

VI.(a) In any new facility application, permit renewal, or permit modification, the applicant shall provide all disclosures required under RSA 149-M:9 and 149-M:10 and all rules adopted thereunder, relative to the applicant and all operators and owners of the affected source, and shall provide full disclosure of all environmental enforcement actions, fines, and violations related to such entities. The disclosures shall be updated upon: the conviction or plea of guilty or no contest to a felony in any court related to the applicant operator or owner, or in the case of a corporation or business entity, any officer, director, partner, key employee or person or business holding 10 percent or more of the equity or debt liability of any of such entities, and; any subsequent finding by any court or local, state or federal agency that any of the entities has committed any violation of environmental laws or standards.

(b) In any new facility application, permit renewal, or permit modification for any facility to combust any material other than those described in RSA 125-I:3, III, or any rule adopted thereunder, or RSA 125-C:6, VI-a, the state, or its designee, shall conduct a comprehensive investigation of the applicant and all operators and owners of the affected source, including but not limited to a criminal background check of the officers, directors, partners, key employees, and persons holding 10 percent or more of the equity or debt liability of such entities. The commissioner shall adopt rules under RSA 541-A relative to a comprehensive investigation. The investigation shall be completed prior to notification of a public hearing and the applicant shall pay the cost of such investigation.

(c) In any new facility application, permit renewal, or permit modification for any facility to combust any material other than those described in RSA 125-I:3, III, or any rule adopted thereunder, or RSA 125-C:6, VI-a, the state, or its designee, shall evaluate, analyze and produce a report that addresses the following:

(2) The effect on all schools, churches, hospitals, water sources, wildlife habitats, forests, and human populations broken down by primary effected group within a 5-mile radius of the facility.

(3) The potential hazards associated with the level of toxins requested to be emitted from said permit application.

(4) The commissioner shall adopt rules under RSA 541-A relative to the procedures for the evaluation, analysis, and report.

(d) The department may deny a permit application, renewal, or modification, or revoke an existing permit, if the department determines, based upon information obtained through any investigation, disclosure or otherwise, that any applicant, or operator or owner of an affected source, or entity or person affiliated therewith, has failed to demonstrate sufficient reliability, expertise, integrity, and competence to operate a combustible waste facility. Such a finding may be required where an applicant, or any person requiring disclosure, has been convicted of, or pled guilty or no contest to, a felony in any court at any time during the 5 years prior to the event requiring disclosure, or if the department determines that any enforcement action, fine, or violation of any environmental law or requirement at any time evidences insufficient reliability, expertise, integrity, and competence to operate the facility. The department may consider other factors in reaching such a determination. Such a determination may be made upon action by the department or upon petition to the department by any party. The department may also deny a permit application, renewal or modification, or revoke an existing permit, if it is determined by the department that any applicant, or entity or person affiliated therewith, has failed to provide complete and accurate information or documentation in conjunction with any investigation or disclosure.

(e) In any case where a facility permitted under this chapter is also subject to a solid waste permit under RSA 149-M, the permit under this chapter shall be applied for and held by the same person or entity holding the solid waste permit.

(f) The town in which the facility is located shall be provided with copies of all evaluations, analyses, and reports regarding the effect of the proposed permit on all waterways and drinking water sources, schools, churches, hospitals, water sources, wildlife habitats, forests, and human populations broken down by primary effected group within a 5-mile radius of the facility, and the potential hazards associated with the level of toxins requested to be emitted from the permit application.

(g) In any new facility application, permit renewal, or permit modification, the applicant shall conduct hydrogeological testing at various locations on the facility site, and shall submit the results of such testing. The testing shall be performed by a department-approved contractor. All previous hydrogeological testing performed shall be listed in the report, including who performed the testing and when such testing occurred.

(h) Any facility that has obtained a new or modified permit, but which has not commenced combustion under the permit by the effective date of this section, shall not combust any material derived from construction and demolition debris, or either one alone, if such facility is located within 5 miles from any residence, church, school, park, drinking source, or hospital.

The Department of Environmental Services has determined this bill will increase state general fund expenditures by $176,850 in FY 2005 and by $353,700 in FY 2006 and each year thereafter. There will be no fiscal impact on county and local expenditures or state, county and local revenues.

The Department stated this bill requires the state to evaluate, analyze, and produce a detailed environmental impact report for any new facility, permit renewal, or permit modification for any facility that combusts any material other than those described in RSA 125-1:3,111 or RSA 125-C:6,VI-a. The report would have to address the following:

· the effect on all waterways and drinking water sources;

· the effect on all schools, churches, hospitals, wildlife habitats, forests, and human populations broken down by primary effected group within a five mile radius of the facility; and

· the potential hazards associated with the level of toxins requested to be emitted from the facility.

Since the state does not have the resources to produce such a report, the work would have to be contracted to a private consultant. The estimated cost to produce such a report is $100,000. The Department estimates that it will receive two applications per year that would be subject to the requirements of this bill, for a total of $200,000 per year.

This bill also requires the Department, Air Resources Division to hold a public hearing for all permit applications. Currently, the Department only holds a public hearing when it is requested to do so by the public. The Department, Air Resources Division issues approximately 150 permits per year. The average number of public hearings requested by the public is 5 per year. As a result, the Department, Air Resources Division would be required to hold 145 additional public hearings per year. The cost of holding a single public hearing is approximately $1,060. This includes staff time (6 people X 4 hours) and rental of a meeting hall. Therefore, this requirement will cost the Department an additional $1,060 X 145 hearings per year, or $153,700.

The effective date of this bill is January 1, 2005, six months into fiscal year 2005. Therefor, costs for FY 2005 are estimated to be ½ of a full year.