CHAPTER
Env-A 200 PROCEDURAL RULES
Statutory
Authority: RSA 125-C:4; RSA 541-A:16,
I(b)
PART
Env-A 201 PURPOSE
Env-A 201.01 Purpose.
(a) The
purpose of this chapter is to establish uniform procedures for providing public
notice of hearings and public comment periods conducted by the department on
matters relating to air pollution control.
These rules are intended to supplement the procedures established by RSA
541-A and Env-C 200.
(b) The
purposes of any proceeding governed by this chapter are to enable the
department to acquire sufficient information to make a reasoned decision and to
afford persons who may be affected by decisions of the department relative to
air pollution control the opportunity to present data and argument prior to the
decision being made.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss by #6057-B, eff
6-30-95; EXPIRED: 6-30-03
New. #8128, eff 7-28-04; ss by #10187, eff 9-25-12;
ss by #13491, eff 11-19-22
PART
Env-A 202 VARIANCES
Env-A 202.01 Applicability. This part shall apply to any person seeking a
variance, as authorized by RSA 125-C:16, from any provision of
RSA 125-C or any rule adopted thereunder in subtitle Env-A.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss and moved by #6057-B,
eff 6-30-95 (from Env-A 203.01); EXPIRED: 6-30-03
New. #8128, eff 7-28-04; ss by #10187, eff 9-25-12;
ss by #13491, eff 11-19-22
Env-A 202.02 Limitations. Pursuant to RSA 125-C:16, III, no variance shall
be granted for more than one year.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss and moved by #6057-B,
eff 6-30-95 (from Env-A 203.02); EXPIRED:6-30-03
New. #8128, eff 7-28-04; ss by #10187, eff 9-25-12;
ss by #13491, eff 11-19-22
Env-A 202.03 Filing a Petition for Variance.
(a) The
person seeking the variance shall:
(1) Prepare
a written petition for variance that contains the information specified in
Env-A 202.04; and
(2) Sign
and date the petition.
(b) The
signature required by (a)(2), above, shall constitute certification that:
(1) The
information contained in the petition is true, complete, and not misleading to
the knowledge and belief of the petitioner; and
(2) The signer understands
that:
a. The submission of false, incomplete, or
misleading information constitutes grounds for the department to:
1. Deny the petition; and
2. Revoke any approval that is granted based on
the information; and
b. The signer is subject to the penalties
specified in New Hampshire law for falsification in official matters, currently
RSA 641.
(c) The
petitioner shall file the original and one copy of the petition with the
department at the following address:
NHDES, Air Resources Division
29 Hazen Drive; P.O. Box 95
Concord, NH 03302-0095
Source. #8128, eff 7-28-04; ss by #10187, eff 9-25-12;
ss by #13491, eff 11-19-22
Env-A 202.04 Content of Petitions. A petition for variance shall include the
following:
(a) The
name, address, and daytime telephone number of the petitioner and, if the
petitioner is other than an individual, the name and telephone number of an
individual who can answer questions about the petition on behalf of the petitioner;
(b) The
specific relief requested by the petitioner, including the requirement(s) from
which the petitioner is specifically seeking relief and the proposed timetables
for partial or progressive abatement of the air pollution involved;
(c) Information
addressing the factors identified in RSA 125-C:16, II, including:
(1) The
progress, if any, the petitioner has made in eliminating or preventing air pollution;
(2) The
character and degree of injury to, or interference with, the health and physical
property of the people if the requested variance is granted; and
(3) The
social and economic value of the source of air pollution; and
(d) A
demonstration that enforcement of the requirement for which the variance is
sought would produce serious economic hardship on such person without equal or
greater benefits to the public.
Source. #8128, eff 7-28-04; ss by #10187, eff 9-25-12
(from Env-A 202.03); ss by #13491, eff 11-19-22
Env-A 202.05 Notice of Petition.
(a) Within
10 working days
after the receipt of a petition for a variance, the department shall issue
public notice of the petition by publishing the notice in a newspaper of
general daily circulation
in the area in which the source is located and on the department’s web site.
(b) The
public notice shall contain the following information:
(1) The
name and address of the petitioner;
(2) The
location of the source for which the variance is being requested;
(3) A
brief description of the relief requested, including the requirement(s) for
which suspension of enforcement is sought;
(4) The
location(s) where interested persons may examine the petition for variance and
hours during which that examination can be conducted;
(5) The
deadline for filing written comments and the address to which they should be
sent; and
(6) The
date and location of the public hearing to be held before the department as
required by RSA 125-C:16, I and Env-A 202.06.
Source. #8128, eff 7-28-04; ss by #10187, eff 9-25-12
(from Env-A 202.04); ss by #13491, eff 11-19-22
Env-A 202.06 Public Hearing.
(a) The
department shall schedule and hold a public hearing on the petition no sooner
than 30 days following the public notice required by Env-A 202.05.
(b) The
hearing shall be conducted as a non-adjudicative proceeding in accordance with
Env-C 205 and Env-A 203.
Source. #8128, eff 7-28-04; ss by #10187, eff 9-25-12
(from Env-A 202.05); ss by #13491, eff 11-19-22
Env-A 202.07 Decision.
(a) Within
15 working days after the public hearing, the department shall issue a written
decision on the petition that sets forth the findings on which the decision is
based.
(b) The
department shall grant a variance if the department determines that:
(1) The
petitioner has taken reasonable steps to eliminate or prevent air pollution;
(2) Granting
a variance would not create a danger to public health, welfare, or safety;
(3) The
source of air pollution has social and economic value to the area in which it
is located; and
(4) Enforcement
of the requirement for which the variance is sought would produce serious
economic hardship on the petitioner without equal or greater benefits to the
public.
(c) The
department shall include in the variance any conditions necessary to minimize
the threat to or impact on the public health and safety.
(d) If
the department determines that the petitioner has not met the criteria listed
in (b)(1)-(4), the department shall deny the petition.
Source. #8128, eff 7-28-04; ss by #10187, eff 9-25-12
(from Env-A 202.06); ss by #13491, eff 11-19-22
Env-A 202.08 Appeals. Any person aggrieved by the department’s
decision may appeal the decision to the air resources council in accordance
with RSA 21-O:14 and Env-AC 200.
Source. #10187, eff 9-25-12 (from Env-A 202.07); ss
by #13491, eff 11-19-22
PART
Env-A 203 HEARINGS
Env-A 203.01 Applicability; Types of Procedures.
(a) A
non-adjudicative hearing shall be conducted in accordance with the provisions
of Env-C 200 applicable to non-adjudicative proceedings, as supplemented by
this part, whenever requested or required to be held under the following:
(1) Env-A
621, with regard to the issuance of, or amendment to, a temporary permit
or permit to operate;
(2) Env-A
622, with regard to the issuance or renewal of, or significant modification to,
a title V operating permit;
(3) Env-A
609.19, with regard to a reopening of a title V operating permit;
(4) Env-A
202, with regard to a petition for variance; and
(5) Env-A
1200 or Env-A 1300, with regard to the issuance of a
reasonably available control technology (RACT) order.
(b) An
adjudicative hearing shall be conducted in accordance with the provisions of
RSA 541-A and Env-C 200 applicable to adjudicative proceedings when required to
be held under Env-A 623 regarding the suspension, revocation, or modification
of a permit.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss and moved by #6057-B,
6-30-95 (formerly Env-A 204.01); EXPIRED: 6-30-03
New. #8128, eff 7-28-04; ss by 10187, eff 9-25-12;
ss by #13491, eff 11-19-22
Env-A 203.02 Public Participation in Non-Adjudicative
Hearings. Any person may participate
in a non-adjudicative hearing while the hearing record is open by:
(a) Testifying
orally;
(b) Submitting
written testimony pursuant to Env-C 205.06;
(c) Submitting
written or oral questions through the presiding officer; or
(d) Any
combination of (a) through (c), above.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss and moved by #6057-B,
eff 6-30-95 (formerly Env-A 204.02); EXPIRED: 6-30-03
New. #8128, eff 7-28-04; ss by 10187, eff 9-25-12;
ss by #13491, eff 11-19-22
Env-A 203.03 Record of Non-Adjudicative Proceedings. The record of a non-adjudicative proceeding
shall consist of the following:
(a) The
application or petition for which the non-adjudicative proceeding was commenced;
(b) All
written comments received by the department on the application or petition;
(c) The
recorded testimony of the hearing;
(d) A
transcript of the hearing, if one is made from the recording or by a
stenographer; and
(e) All
exhibits submitted in conjunction with the proceeding by the applicant or
petitioner and by the public.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; ss and moved by #6057-B,
eff 6-30-95 (formerly Env-A 204.03); EXPIRED: 6-30-03
New. #8128, eff 7-28-04; ss by 10187, eff 9-25-12;
ss by #13491, eff 11-19-22
PART
Env-A 204 PUBLIC HEARINGS ON THE STATE
IMPLEMENTATION PLAN
Env-A 204.01 Required Notice.
(a) At
least 30 days before the date of any public hearing related to revisions to the
state implementation plan (SIP), the department shall cause a public notice to
be published in a newspaper of general daily statewide circulation.
(b) The
notice shall contain the following information:
(1) An
explanation of the proposed SIP revision;
(2) The
location(s) where, and the hours during which, a copy of the proposed SIP
revisions may be reviewed;
(3) The
date by which, and the address where, written comments must be filed; and
(4) The
date, time, and location of the hearing if one has been scheduled, or the
deadline for requesting a hearing if one has not already been scheduled.
(c) Any
person may request a hearing by submitting a written request for a hearing to
the address specified in (b)(3), above, on or before the deadline for
requesting a hearing specified in (b)(4), above.
(d) If
a hearing date is not contained in the notice published under (b), above, but a
hearing is requested during the comment period, the department shall set a
date, time, and location of the hearing and cause that information to be
published in a newspaper of general daily statewide circulation and on the
department’s web site at least 30 days prior to the hearing date.
(e) The
department shall send the required notice(s) to the U.S. Environmental
Protection Agency, Region I (EPA), at least 30 days prior to the end of the
comment period or the hearing date, as applicable.
Source. #1710, eff 2-19-81; ss by #2332, eff 4-29-83;
ss by #2938, eff 12-27-84; ss by #5033, eff 12-27-90; rpld
by #6057-B, eff 6-30-95; ss by #6782-B, eff 6-30-98; ss by #8128, eff 7-28-04;
ss by 10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 204.02 Hearing Procedures. Public hearings requested or required
pursuant to the SIP shall be conducted in accordance with the provisions of
Env-C 200 applicable to non-adjudicatory public hearings.
Source. #10187, eff 9-25-12; ss by #13491, eff 11-19-22
PART
Env-A 205 WAIVERS
Env-A 205.01 Purpose. The purpose of the rules in this part is
to accommodate those situations where strict adherence to the rules would not be in the best
interest of the public.
Source. #6506-B, eff 5-1-97; ss by #8128, eff 7-28-04;
ss by #10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 205.02 Applicability. These rules shall apply to any person who is
or would be directly and adversely affected by the strict application of a rule
in Env-A 100, et seq., and who wishes to request a waiver from
the rule.
Source. #6506-B, eff 5-1-97; ss by #8128, eff 7-28-04;
ss by #10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 205.03 Waiver Requests: Preparation and Filing.
(a) The
person requesting a waiver shall:
(1) Prepare
a written request for a waiver that contains the information specified in Env-A
205.04; and
(2) Sign
and date the request.
(b) The
signature required by (a)(2), above, shall constitute certification that:
(1) The
information contained in the request is true, complete, and not misleading to
the knowledge and belief of the signer; and
(2) The signer understands
that:
a. The submission of false, incomplete, or
misleading information constitutes grounds for the department to:
1. Deny the request; and
2. Revoke any waiver or other approval that is
granted based on the information; and
b. The signer is subject to the penalties
specified in New Hampshire law for falsification in official matters, currently
RSA 641.
(c) The
person requesting the waiver shall file the original and one copy of the waiver
request with the department at the following address:
NHDES, Air Resources Division
29 Hazen Drive; P.O. Box 95
Concord, NH 03302-0095
(d) Any
waiver request that relates to an application for a permit shall be submitted
with the permit application or as soon thereafter as the applicant identifies
the need for the request.
Source. #6506-B, eff 5-1-97; ss by #8128, eff 7-28-04;
ss by #10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 205.04 Waiver Requests: Content. A waiver request shall include the following
information:
(a) The
name, mailing address, and daytime telephone number of the requestor and, if
available, an e-mail address of the requestor;
(b) The
name and location of the facility or activity to which the request relates;
(c) A
specific citation to the Env-A rule from which the waiver is sought;
(d) A
complete explanation
of why a waiver is being requested, including an explanation of the operational and
economic consequences of complying with the rule as written;
(e) A
complete explanation
of any alternate procedure, method, or activity that is sought to be
substituted for the procedure, method, or activity that is required by the rule
from which a waiver is being sought;
(f) The
estimated length of time the waiver will be needed; and
(g) A
complete explanation
of why the requestor believes that the waiver request meets the criteria in
Env-A 205.06.
Source. #6506-B, eff 5-1-97; ss by #8128, eff 7-28-04;
ss by #10187, eff 9-25-12 (from Env-A 205.03); ss by #13491, eff 11-19-22
Env-A 205.05 Waiver Requests: Review.
(a) Upon
receipt of a waiver request, the department shall review the request.
(b) If
the request relates to an application, the request shall be reviewed as part of
the application review procedures.
(c) Submission of a waiver request relating to a
previously-filed application shall constitute an
agreement by the applicant that the time period for processing the application
recommences upon submission of the request.
Source. #6506-B, eff 5-1-97; ss by #8128, eff 7-28-04;
ss by #10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 205.06 Waiver Criteria. The department shall grant a waiver if it
determines that the following criteria have been met:
(a) Granting
a waiver will not
result in an adverse impact on public health, public safety, the
environment, or the natural resources of the state of New
Hampshire;
(b) Granting
a waiver
will not have the effect of waiving or modifying a statutory
requirement, unless the statute specifically authorizes the department to waive
or modify the requirement;
(c) Granting
a waiver will not
have the effect of waiving or modifying a federal requirement, unless the
statute or regulation that establishes the requirement specifically authorizes
waivers or modifications to the requirement and EPA approves the waiver; and
(d) Strict
compliance with the Env-A rule:
(1) Will
result in an adverse effect to the public health, public safety, the environment,
or the natural resources of the state of New Hampshire;
(2) Will
result in economic hardship for the person requesting the waiver that outweighs the
benefit to the public or the environment of complying with the rule; or
(3) Is
technologically infeasible.
Source. #10187, eff 9-25-12 (from Env-A 205.04); ss
by #13491, eff 11-19-22
Env-A 205.07 Decision on Waiver Requests; Conditions.
(a) The
department shall notify the person requesting the waiver of the decision in
writing.
(b) If
the waiver request is submitted as part of a permit application and a waiver is
granted, the department shall incorporate the waiver into any permit issued.
(c) If the waiver request is denied, the
department shall identify the specific reason(s) for the denial.
(d) The department shall include such conditions
in a waiver as are necessary to ensure that the criteria of Env-A 205.04 will
be met for the duration of the waiver.
(e) The waiver shall specify the date on which
it will expire, which shall be no later than one year from the date it is
granted.
Source. #10187, eff 9-25-12; ss by #13491, eff 11-19-22
Env-A 205.08 Compliance with Waiver Conditions.
(a) Any
person who receives a waiver shall comply with the conditions set forth therein
and with all applicable sections of subtitle Env-A 100.
(b) Failure
to comply with the conditions of a waiver shall constitute grounds for
reopening and revising the underlying permit as specified in Env-A 609 or Env-A
612, as applicable, or suspension or revocation of the underlying permit as
specified in Env-A 613, as well as enforcement in accordance with the authority
set forth in RSA 125-C:15.
Source. #10187, eff 9-25-12; ss by #13491, eff 11-19-22
APPENDIX
RULE |
STATUTE IMPLEMENTED |
Env-A
201.01 |
RSA
541-A:16, I(b); RSA 125-C:6, X |
Env-A
202.01 |
RSA
125-C:16, I |
Env-A
202.02 |
RSA
125-C:16, III |
Env-A
202.03 |
RSA
125-C:16, I; RSA 541-A:16, I |
Env-A
202.04 - Env-A 202.06 |
RSA
125-C:16, I & II; RSA 541-A:16, I |
Env-A
202.07 |
RSA
125-C:16, III |
Env-A
202.08 |
RSA
125-C:14 |
Env-A
203.01 - Env-A 203.03 |
RSA
125-C:6, X; RSA 541-A:16, I |
Env-A
204.01, Env-A 204.02 |
RSA
125-C:6, X; RSA 541-A:16, I |
Env-A
205.01 - Env-A 205.08 |
RSA
125-C:6, X; RSA 541-A:22, IV |