• NH Updates Rules for Wetlands, Toxic Air Pollutant and Oil Discharge
  • June 2, 2004 | Author: Thomas S. Burack
  • Law Firm: Sheehan Phinney Bass + Green, Professional Association - Manchester Office
  • Wetlands Mitigation Rules Adopted

    Effective March 11, 2004, New Hampshire adopted new rules pertaining to compensatory mitigation for wetlands dredge and fill projects. These rules amend existing sections of the New Hampshire wetlands rules, and also adopt a new chapter on compensatory mitigation that includes upland buffer preservation as well as wetland creation and wetland restoration. A more detailed summary of these rules appeared in the January/February 2004 New Hampshire Regulatory Update column in this magazine.

    Proposed Revisions to Regulated Toxic Air Pollutants Rules.

    On January 20, 2004, the Department of Environmental Services (DES) proposed amendments to Chapter Env-A1400 pertaining to regulated toxic air pollutants (RTAPs). Pursuant to New Hampshire statute, RSA Chapter 125-I, Toxic Air Pollutants, the DES is required to update these rules annually to amend the table of RTAPs and their ambient air limits (AALs) to reflect changes made by the American Conference of Governmental Industrial Hygienists (ACGIH) to the list of chemical substances for which ACGIH sets occupational exposure limits. This year's proposed amendments include changes made by ACGIH in 2002 and 2003.

    Consistent with ACGIH's changes, the proposed rules would amend various limits for some thirty-five compounds, would add some twenty-one substances to the list (including jet fuel and diesel fuel in various forms) and would remove three substances from regulation under the program, (including, caprolactam vapor and zinc oxide fume). DES also proposes to remove carbon dioxide from the RTAP list because it has determined that toxic levels of carbon dioxide could only be achieved in confined areas, which fall outside of the statute's authority (which is to regulate only ambient air). Although emissions from the combustion of virgin petroleum products is exempt under the rules, the potential for regulation resulting from releases from storage tanks of jet fuels and various forms of diesel fuel (diesel oil, #2 fuel oil, #4 fuel oil, # diesel and #4 marine diesel) was reviewed carefully by DES to determine the potential impact on the regulated community. Analyses conducted at the largest storage facility in the state, the Sprague Energy facility in Newington, found that emissions of jet fuels and diesel fuels were below the proposed de minimis levels for these fuels, which generally are of low volatility. DES has concluded, therefore, that smaller storage facilities will also be below the de minimis levels.

    Another aspect of the proposed amendments would exempt devices or processes from which actual emissions of a RTAP are below the annual and 24-hour de minimis emission levels, provided that there is no air pollution control equipment on the device or process and records are kept documenting that emissions criteria are met. In the case of storage tanks for jet or diesel fuels, because DES fully expects that all existing storage facilities' emissions would be below the de minimis levels, and because theses facilities do not typically have any air pollution control devices on them, this would simply mean keeping some form of inventory records. For these reasons, DES has advised the Air Resources Council that adding jet and diesel fuels to the RTAP list will not create a regulatory burden for any existing stationary source.

    To help reduce the number of smaller facilities that would otherwise be subject to the RTAP rules, such as auto repair shops that have spray paint booths, DES also proposes some additional exemptions. Rather than focusing on a device's potential to emit by calculating total annual emission based on 24 hour operation, 7 days per week, the proposed exemption would allow for a determination based on actual emissions. Devices or processes whose actual emissions are less than fifty percent of the annual and 24 hour ambient air limits for that pollutant using the adjusted in-stack concentration method or the air dispersion modeling analysis method specified in the rules would be exempt from the rules provided their emissions are not subject to treatment or removal by pollution control equipment prior to being emitted to the ambient air, and that documentation pertaining to the actual emissions are retained at the site and made available to the DES for inspection. The DES Small Business Technical Assistance Program (SBTAP) is available to assist small businesses in calculating their air emissions and determining if they qualify for exemptions under the rules.

    Another proposed amendment would change the exemption for combustion of "wood" to apply only to the combustion of "untreated wood." The existing rules define the term "treated" as including a material that is "treated, coated or preserved." The proposed rules would also make some technical amendments to the criteria by which the Department determines 24-hour ambient air limits and annual ambient air limits.

    A public hearing on the proposed rules will be held on March 30, and the public comment period will close on April 9. Barring some unforeseen concerns or opposition, these rules are likely to be promulgated in final form within the next few months.

    DES Poised to Propose New Rules for Reporting and Remediation of Oil Discharges

    Staff of the DES Waste Management Division (WMD) has been working on a set of proposed rules to replace the existing Env-Ws 412 reporting and remediation of oil discharges rules which will expire in November 2004. Although an initial proposal has not yet been formally proposed, DES has sought input from a wide range of interested parties on a set of rules that are likely to contain a number of the provisions that were part of the effort undertaken by DES in 2002 and 2003 to develop a comprehensive set of rules pertaining to the reporting and remediation of discharges of hazardous substances and petroleum products. However, the rules that are expected to be proposed shortly will address solely oil discharges. The proposed rules are expected to include soil cleanup standards (as do the existing Env-Ws 412 rules), to clarify notification requirements, and to provide greater detail on requirements for preliminary response actions, comprehensive response actions (including site investigations and remedial actions), as well as sampling and analysis criteria. The issue of profiling, storing and disposing of contaminated soil is also expected to be addressed by the proposed rules. Because the existing rules will expire in November, 2004, it is expected that DES will endeavor to move this proposal through the rulemaking process as expeditiously as it can.