Bill Text: NH HB211 | 2023 | Regular Session | Amended
Bill Title: Relative to a report by the department of energy on the effectiveness of the system benefits charge and relative to surface water setbacks for landfills and relative to water quality.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2023-08-09 - Signed by Governor Sununu 08/04/2023; Chapter 181; eff: 10/03/2023 House Journal 17 [HB211 Detail]
Download: New_Hampshire-2023-HB211-Amended.html
HB 211 - AS AMENDED BY THE SENATE
06/08/2023 2178s
06/08/2023 2177s
2023 SESSION
23-0221
10/08
HOUSE BILL 211
SPONSORS: Rep. D. Thomas, Rock. 16; Rep. Vose, Rock. 5
COMMITTEE: Science, Technology and Energy
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AMENDED ANALYSIS
This bill removes the department of environmental services from a report on the effectiveness of the system benefits charge.
This bill also requires the department of environmental services to adopt rules relative to surface water setbacks for landfills and makes an appropriation to the department.
The bill also makes changes to the timeline for certifications by the department of environmental services of activities that may result in a discharge into surface water bodies.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06/08/2023 2178s
06/08/2023 2177s 23-0221
10/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Electric Utilities; System Benefits Charge; Report. Amend RSA 374-F;4, VIII(f) to read as follows:
(f) The [department of environmental services and the] department of energy shall submit a report to the house science, technology, and energy committee, and the senate energy and natural resources committee by October 1 of each year. The report shall concern the results and effectiveness of the system benefits charge.
2 Statement of Purpose. The protection of perennial rivers, lakes, and coastal waters from contamination is in the public interest of the state of New Hampshire. The general court recognizes that the state’s current statutes and rules provide for redundant protection of groundwater and surface water from releases or spills of leachate generated by disposal of waste in the state’s landfills. As environmental protection technology advances, however, the general court intends that the department of environmental services reexamine its rules periodically to determine whether the protections already provided by the rules can be enhanced for newly sited facilities. The purpose of this act is to direct the department to reexamine its rules governing setbacks of newly sited landfills from surface water bodies to impose site-specific requirements sufficient to prevent groundwater contaminated by a spill or release of leachate from reaching such a water body before remedial action can be implemented, to provide the department with representative factors that it must consider in adopting new setback rules, and to require the department to take into account certain additional environmental protective measures proposed by an applicant for a landfill permit. The act also sets a timeframe for the department’s adoption of new setback rules and requires that any newly-sited landfill permitted after the effective date comply with the new rules if they are timely adopted as provided in this act.
3 Findings. The general court finds that:
I. The current rules of the department of environmental services require a “thorough hydrogeological investigation” of any proposed landfill site so that “[t]he potential release of contaminants to surface waters can be prevented, attenuated or otherwise remediated.” Env-Sw 804.03(c)(3). The rules also contain multiple provisions for the design, construction, and operation of landfills that require redundant protections against groundwater and surface water contamination. These provisions include a minimum 200-foot setback between the proposed landfill footprint and any perennial surface water body. Env-Sw 804.03(d).
II. The department of environmental services' rules have proven effective in preventing releases of contaminants from the state’s lined landfills to groundwater and surface water, and the department’s requirement of a network of release detection wells at landfill sites enables the department to be notified of even low levels of contaminants in groundwater so that contamination is detected and remediated before the contaminants can migrate to surface water or sensitive receptors like drinking water wells.
III. The 200-foot minimum setback between landfills and perennial surface water in the department’s rules falls within one of 3 broad categories of methods used by other states to determine setbacks. The 3 categories are distance-based setbacks, site-specific setbacks, and distance-based setbacks that can be reduced by the landfill owner through implementation of design features that provide additional redundancy to the landfill’s environmental protection systems.
IV. The general court finds that the most protective of these methods is the use of site-specific setbacks. This approach avoids the possible limitations of the current one-size-fits-all distance-based method, ensures that the setback is based on the conditions at the specific site, and concentrates protections on downgradient groundwater and surface water where it belongs.
V. The state should encourage permit applicants to propose design features providing further redundancy to the landfill’s environmental protection systems and such features should be taken into account in the department’s determination of a site-specific setback.
VI. This approach reflects the balance New Hampshire seeks to strike in its environmental regulation between ensuring that all reasonably practicable and economically sound measures are used to protect our environment while providing permit applicants with incentives to improve environmental protection beyond the rigorous baseline standards.
4 New Paragraph; Rulemaking; Perennial Surface Water Setback. Amend RSA 149-M:7 by inserting after paragraph III the following new paragraph:
III-a. Criteria for determining the site-specific setback of a landfill footprint from perennial surface water bodies to prevent, attenuate, or otherwise remediate the potential release of contaminants to each such surface water body from the landfill footprint. Any rules adopted by the department under this paragraph shall, in addition to any other factors the department deems necessary for the rules to provide adequate protection of perennial surface water, take into account the following with respect to the subsurface conditions between the proposed landfill footprint and the surface water body:
(a) The soil stratigraphy and permeability;
(b) The volume, gradients, and travel time of groundwater supplying the surface water body, including the means by which to measure or model representative travel time;
(c) Bedrock lithology and structure, including the nature, degree and continuity of fracturing; and
(d) Hydraulic conductivity and such processes as advection, dispersion, and diffusion in groundwater.
5 New Paragraph; Site-Specific Setback to Perennial Surface Water. Amend RSA 149-M:9 by inserting after paragraph XIV the following new paragraph:
XV.(a) In formulating a site-specific setback to perennial surface water under rules adopted pursuant to RSA 149-M:7, III-a, the department shall take into account any measures proposed in the application for a permit that would provide greater or more redundant protection of perennial surface water than the department would otherwise require under its rules. Such measures may include, without limitation:
(1) Installation of a tertiary soil or geomembrane liner system below the secondary liner system, providing a third layer of protection between waste materials and groundwater.
(2) Installation of a second monitoring zone beneath the secondary liner system providing redundant verification of the effectiveness of the liner systems.
(3) Conversion of the primary and/or secondary liner systems from the minimum single-liner design to an enhanced composite liner design in accordance with the department’s landfill design rules.
(4) Improvements to the engineered low permeability subgrade such as increases in thickness and reductions in permeability of the soil zones beneath the liner systems.
(5) Increasing the thickness of the liner by at least 20 mil for geomembrane liners and at least one foot for soil liners.
(6) Increasing the vertical separation distance of the secondary liner from groundwater to greater than the minimum set by the department’s rules.
(7) Installation of groundwater monitoring well networks that are capable of being utilized as groundwater extraction points or that provide points for sampling, groundwater characterization, or groundwater extraction in excess of what the department requires under its rules.
(8) Implementation of enhanced environmental monitoring programs, including increasing the frequency of sampling and analytical testing, incorporation of real-time monitoring systems, and use of automated collection with telemetry.
(b) The department shall include as a condition to any permit the implementation of a measure proposed in the application for the permit upon which the department relied in formulating the site-specific setback required by RSA 149-M:7, III-a.
6 Department of Environmental Services; Solid Waste Landfill Setback Requirements Assessment and Recommendations.
I. The department of environmental services shall contract with one or more qualified consulting firms or individuals to perform an assessment of the current perennial surface water protection and setback requirements that are applicable to the permitting of newly sited solid waste landfills in order to meet the requirements of sections 3 and 4 of this act. Within 30 days of the effective date of this act, the department shall post on its website a draft request for proposals from such consulting firms and individuals to conduct the assessment. The department shall accept public comment on the draft request for proposals for 30 days after such posting. The department shall issue the final request for proposals by October 1, 2023, with a submission deadline for proposals no later than 45 days after such issuance. The scope of the proposals shall include the following:
(a) An assessment of the environmental, safety, and technical aspects of perennial surface water setback requirements and related protections in current state law and administrative rules that are applicable to the permitting of newly-sited solid waste landfills;
(b) Recommendations for using the criteria enumerated in section 3 of this act to establish site-specific setbacks;
(c) Recommendations for any other factors the consultant determines to be necessary to provide adequate protection of perennial surface water in section 3 of this act. For each such recommendation, the consultant shall identify each state that has adopted the recommended factor and describe how such state has applied the recommended factor, including a summary of the outcome of each permit application to which the state has applied the recommended factor; and
(d) Recommendations on a methodology for consideration of the measures set forth in section 4 of this act, and any similar additional recommended measures to provide greater or more redundant protection of perennial surface water in formulating a site-specific setback that differs from what the department would otherwise require under its rules.
II. The selected contractor shall complete the assessment and submit a final report to the department within 150 days after contract approval. The department shall make the report available on its website and shall review and consider the report’s recommendations when drafting the rules required under section 3 of this act.
7 Department of Environmental Services; Target for Completion of Rulemaking; Applicability.
I. If the rules required by sections 3 and 4 of this act are adopted by the department of environmental services within 24 months of this act's effective date:
(a) Any newly-sited landfill in the state that receives a standard permit, as defined by the department’s rules, shall meet the newly adopted setback rules; and
(b) The department may not issue any such standard permit without imposing a site-specific setback on the landfill’s design and construction in accordance with the newly adopted setback rules. Any standard permit application pending before the department on, or filed with the department after, the effective date of this act shall be fully processed in accordance with RSA 149-M:9, VIII and a decision on the application timely provided to the applicant, provided, however, that any approval of such an application shall be held in abeyance until the department adopts rules in accordance with sections 3 and 4 of this act or 24 months elapses after the effective date of this act, whichever occurs first.
II. Upon the department's adoption of the rules in accordance with sections 3 and 4 of this act within 24 months of the effective date, the applicant whose approval has been held in abeyance under this section shall submit a modification of its application proposing and substantiating with all requisite information contemplated by the newly adopted setback rules a site-specific setback for the proposed facility, and the department shall within 120 days of submission of the modification approve, deny, or modify the proposed site-specific setback and if the department approves or modifies the proposed setback it shall approve the standard permit conditioned on implementation of that setback.
III. If the department does not adopt rules in accordance with sections 3 and 4 of this act within 24 months of the effective date of this act, the department shall apply its current rules applicable to surface water protection in determining the required setback to any application for such a standard permit that is being held in abeyance when such 24-month period expires and approve it if it complies with the current rules.
8 Appropriation; Department of Environmental Services. The sum of $150,000 for the fiscal year ending June 30, 2023 is hereby appropriated to the department of environmental services to fund a contract for assessment of the requirements for solid waste landfill setbacks from perennial surface water as provided in this act. Such appropriation shall be nonlapsing. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
9 Enforcement of Classification. Amend RSA 485-A:12, III to read as follows:
III. No activity, including construction and operation of facilities, that requires certification under section 401 of the Clean Water Act and that may result in a discharge, as that term is applied under section 401 of the Clean Water Act, to surface waters of the state may commence unless the department certifies that any such discharge complies with the state surface water quality standards applicable to the classification for the receiving surface water body. The department shall provide its response to a request for certification to the federal agency or authority responsible for issuing the license, permit, or registration that requires the certification under section 401 of the Clean Water Act. Unless certification is waived by the department, the certification shall include any conditions on, modifications to, or monitoring of the proposed activity necessary to provide assurance that the proposed discharge complies with applicable surface water quality standards. The department may enforce compliance with any such conditions, modifications, or monitoring requirements as provided in RSA 485-A:22.
10 New Paragraph; Enforcement of Classification; Request for Certification. Amend RSA 485-A:12 by inserting after paragraph III the following new paragraph:
III-a. In processing a request for certification under paragraph III:
(a) Within 50 days of receipt of the request for certification, the department shall either notify the person who submitted the request that the request is complete or request any additional information required to complete its evaluation of the request. Any request for additional information shall specify that the person requesting certification submit such information as soon as practicable and shall notify the person that if all of the requested information is not received within 120 days of the request, the department shall deny the request. Upon written request of the applicant prior to the end of such 120-day period, the department shall grant a 30-day extension. Upon written request of the applicant prior to the end of such 30-day period, the department shall grant a subsequent 30-day extension.
(b) Within a reasonable time after receipt of the request, or of the response to a timely request for additional information made by the department pursuant to subparagraph (a), the department shall, in accordance with rules adopted under RSA 485-A:6, VI-a, provide a reasonable opportunity for public comment, not to exceed 30 days, on proposals to grant, waive, or deny a request for certification and may hold a public hearing on such proposals.
(c) Notwithstanding subparagraphs (a) and (b), within the period of time specified under section 401 of the Clean Water Act, the department shall:
(1) Provide its response to grant the request for certification;
(2) Provide its response to waive the request for certification; or
(3) Provide its response to deny the request for certification and issue written findings in support of the denial.
(d) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law.
(e) If the department fails to act on a request for certification within the applicable time frame established in subparagraphs (a), (b) or (c), the certification shall be considered waived and the person who made the request may ask the department to provide written notice acknowledging that certification was waived by default.
11 Enforcement of Classification. Amend RSA 485-A:12, IV to read as follows:
IV. No activity that involves surface water withdrawal [or diversion of surface water] that exceeds 20,000 gallons per day averaged over a 7-day period or more than 600,000 gallons over a 30-day period and requires registration under RSA 488:3, that does not otherwise require the certification required under paragraph III, and which did not exceed such withdrawal rates before [was not in active operation as of] the effective date of this paragraph, may commence unless the department certifies that the surface water withdrawal [or diversion of surface water] complies with state surface water quality standards applicable to the classification for the surface water body. The certification shall include any conditions on, modifications to, or monitoring of the proposed activity necessary to provide reasonable assurance that the proposed activity complies with applicable surface water quality standards. The department may enforce compliance with any such conditions, modifications, or monitoring requirements as provided in RSA 485-A:22.
12 New Paragraph; Enforcement of Classification. Amend RSA 485-A:12 by inserting after paragraph IV the following new paragraph:
IV-a. In processing an application for permits under RSA 485-A:12, IV:
(a) Within 50 days of receipt of the request for certification, the department shall either notify the person who submitted the request for certification that the request is complete or request any additional information required to complete its evaluation of the request. Any request for additional information shall specify that the person requesting certification submit such information as soon as practicable and shall notify the person that if all of the requested information is not received within 120 days of the request, the department shall deny the request. Upon written request of the applicant prior to the end of such 120-day period, the department shall grant a 30-day extension. Upon written request of the applicant prior to the end of such 30-day period, the department shall grant a subsequent 30-day extension.
(b) Within a reasonable time after receipt of the request, or of the response to a timely request for additional information made by the department pursuant to subparagraph (a), the department shall, in accordance with rules adopted under RSA 485-A:6, VI-a, provide a reasonable opportunity for public comment, not to exceed 30 days, on proposals to grant, waive, or deny a request for certification and may hold a public hearing on such proposals.
(c) Within 90 days after receipt of a request for certification, or of the response to a timely request for additional information made by the department pursuant to subparagraph (a), the department shall:
(1) Approve the request in whole or in part and issue a certification; or
(2) Deny the request and issue written findings in support of the denial; or
(3) Extend the time for rendering a decision on the request for good cause and with the written agreement of the person who made the request for certification.
(d) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law.
(e) If the department fails to act on a request for certification within the applicable time frame established in subparagraphs (a), (b) or (c), the certification shall be considered waived and the person who made the request may ask the department to provide written notice acknowledging that certification was waived by default.
13 Rulemaking; Water Withdrawals. Amend RSA 485-A:6, VI-a to read as follows:
VI-a. Procedures and criteria for requesting, reviewing, and [granting] acting on requests for certification [certifications] under RSA 485-A:12, III and IV, including public notice and public hearing requirements of the department's proposed action on certification requests.
14 Rules for Water Conservation. Amend RSA 485:61, II to read as follows:
II. The water conservation rules in paragraph I of this section shall apply to all new permit applicants and applications for water withdrawals subject to the provisions of RSA 485:3, RSA 485:48, RSA 485-C:21, RSA 485-A:12, IV, and section 401 of the Clean Water Act.
15 Standards for Classification of Surface Waters of the State. Amend RSA 485-A:8, II to read as follows:
II. Class B waters shall be of the second highest quality and shall have no objectionable physical characteristics and shall contain not more than either a geometric mean based on at least 3 samples obtained over a 60-day period of 126 Escherichia coli per 100 milliliters, or greater than 406 Escherichia coli per 100 milliliters in any one sample; and for designated beach areas shall contain not more than a geometric mean based on at least 3 samples obtained over a 60-day period of 47 Escherichia coli per 100 milliliters, or 88 Escherichia coli per 100 milliliters in any one sample; unless naturally occurring. There shall be no disposal of sewage or waste into said waters except those which have received adequate treatment to prevent the lowering of the biological, physical, chemical or bacteriological characteristics below those given above, nor shall such disposal of sewage or waste be inimical to aquatic life or to the maintenance of aquatic life in said receiving waters. The pH range for said waters shall be 6.5 to 8.0 except when due to natural causes. The commissioner shall adopt rules, under RSA 541-A, relative to dissolved oxygen water quality standards in a manner consistent with Environmental Protection Agency guidance on dissolved oxygen water criteria published pursuant to section 304(a) of the Clean Water Act, and other relevant scientific information. Any stream temperature increase associated with the discharge of treated sewage, waste or cooling water, water diversions, or releases shall not be such as to appreciably interfere with the uses assigned to this class. The waters of this classification shall be considered as being acceptable for fishing, swimming and other recreational purposes and, after adequate treatment, for use as water supplies. Where it is demonstrated to the satisfaction of the department that the class B criteria cannot reasonably be met in certain surface waters at all times as a result of combined sewer overflow events, temporary partial use areas shall be established by rules adopted under RSA 485-A:6, XI-c, which meet, as a minimum, the standards specified in paragraph III. [The commissioner shall not calculate nutrient discharge limits for aquatic life and human health criteria based on 7Q10 flow or such other flow criteria more restrictive than 7Q10.]
I. Section 8 of this act shall take effect June 30, 2023.
II. Section 1 of this act shall take effect 60 days after its passage.
III. The remainder of this act shall take effect upon its passage.
