2005 N. H. Legislative Update A Focus on Environmental Bills

1. 2005 N. H. Legislative UpdateA Focus on Environmental Bills Presentation by: Michael S. Giaimo, Esq. V.P., Business & Industry Association of New Hampshire Presentation to: NH Chapter- Environmental Business Council Hosted by: Wednesday April 27, 2005

2. The Immutable Law of the LegislatureFor every action, there is an opposite and equal reaction • WATER • Bills resulting from USA Springs v. Barring. & Notting. • AIR • Bills resulting from Bio-Energy v. Town of Hopkinton • WASTE • Bills resulting from N.Country Env. Serv v. Bethlehem • Bills resulting from Bio-Energy v. Town of Hopkinton • RECYCLING bills caused by increased efforts to get towns and non-profits money for municipal projects

3. Quick List: Highlights 2005 Env. Leg.

4. Quick List: Highlights- Continued

5. Table of Content of Slide Presentation • WATER • SLIDES 6 through 11 • AIR • SLIDES 12 through 19 • WASTE • SLIDES 20 through 23

6. 2005 NH Water Bills- Slide 1 HB 69- Large Groundwater Withdrawals Originally introduced = Municipal Veto Authority Opposed by BIA and DES, IBWA Premature to make such a change before SB 155 Commission (see SB 142) reviews such an idea and endorses it Same concept voted down in 2003 Current system works, just needs modifications Modification made: Disclosure of information by all parties (Applicant/Town/DES) 2nd public hearing upon request (after findings of DES) Right to appeal to Water Council Passed House with above referenced modifications

7. 2005 NH Water Bills- Slide 2 • HB 215- Creation of Water Registry • SB 155 Commission, established 2 years ago, decided that the state needs to have a better appreciation and understanding of groundwater • Commission recommended this bill, requiring reporting • WHO REPORTS: • 20K gal/day, 140K gal/wk, 600K gal /month) need to submit data to DES • Non-compliance will result in penalties, as would non-good faith inaccuracies in monitoring, or lack of monitor • Most businesses in this category already have monitors in place, bill would just require submission of this data. • House passed, Senate likely to do the same

8. 2005 NH Water Bills- Slide 3 • SB 142- Extends the SB 155 Groundwater Comm. • 21 members representing a diverse group of interested parties, working together to effectuate good public policy and law • Question is how long the commission should last; through 2006 (Senate recommendation) or 2008 (House recommendation) • House version will likely prevail, not a contentious issue, should be quickly resolved

9. 2005 NH Water Bills- Slide 4 • Other water bills of note: • SB 83, among other things, this bill seeks to establish a committee to • Explore funding options for shoreland protection program • Identify areas of comprehensive shoreland protection act in need of revision. • Review current permitting, waiver, variance, and enforcement provisions of the comprehensive shoreland protection act and make recommendations to revise and/or clarify these provisions. • Passed the Senate, went to the House (RR&D) last week

10. 2005 NH Water Bills- Slide 5 • SB 142- In lieu fees- for Upland Areas • The department is authorized to accept payment in lieu of requiring compensatory mitigation provided such payment shall be used to restore or create wetlands or to preserve upland areas adjacent to wetlands and to provide funds to support the long-term administration of the program. • Trade off- for mitigation banking • Passed Senate, in the House (RR&D) • Strong support by Construction/Contractors (NH AGC)

11. 2005 NH Water Bills- Slide 6 • HB 561- Eminent Domain Bill • Bill would grant regional water districts the power of eminent domain • BIA opposed: • It May Result in Conflicts Between Neighboring Communities • Can Result in a Loss of Local Control • Bad Public Policy • Takes Power Away from the Local Citizens • Sends the State Down a Slippery Slope • Bill defeated in the House, (16-0 in M&C Comm.)

12. 2005 NH Air Bills- Slide 1 • HB 121- Air Pollution Control Permits • This bill requires facilities applying for air pollution control permits from the department of environmental services to obtain all required land use permits from the local political subdivision. • BIA opposed, because: • Subverted power from experts (DES) and gave de facto veto power to localities • Gave municipalities ability to delay air permits for arbitrary or capricious reasons. • Open the door for blackmail and could mitigate smart growth • Retained in Committee; House Municipal & Country Government

13. 2005 NH Air Bills- Slide 2 • HB 315- BACT for C&D Incineration • Originally had wide scope, anyone with an air permit (emitting any PBT) would have to have the Best Available Control Technology • Bill would have had tremendous impact, beyond need or intent of bill sponsors • Bill sponsors wanted to mandate BACT for those sources that incinerate C&D. Bill amended to accomplish this objective • This amendment was used to defeat C&D ban bills • Passed the House, hearing before Senate this week

14. 2005 NH Air Bills- Slide 3 • SB 104- Tax Exemption Removal for Partial Pollution Control Devices • This bill, which passed house, attempts two things: • Removes the tax exemption for pollution control facilities, devices, appliances, or installations that are only partly for the purpose of reducing air and water pollution, and • removes all tax exemptions for pollution control for privately-owned landfills. • BIA opposed this bill (for removing partial exemptions): • Partial Tax Exemptions Help Manufacturing • Good Public Policy Encourages Pollution Prevention • Raises the Cost to the Consumer • Changing the Rules Midway Through the Game (not fair) • In House M&C Comm, sub-comm. hearing this week • Good chance that House will return “partial” pollution credit

15. 2005 NH Air Bills- Slide 4 • SB 128- PSNH/Power Plant/Mercury Bill • Establishes emissions reduction standards required by Clean Power Act (RSA 125:O = HB 284 (2002)) • Mercury Reductions as follows: • Total mercury emissions from all affected sources (PSNH) burning coal as a fuel, 50 pounds per year beginning July 1, 2009, and • a reduction to 24 pounds per year beginning July 1, 2013. • Bill passed Senate, House likely to retain. Subcommittee work session (House ST&E Committee)

16. SB 128- Continued- Air Slide 5 • BIA Opposed SB 128, because: • State law should not be more stringent than federal • Increase to rates, competitively disadvantage state • High cost of compliance w/o guarantee of better environment • Cost of compliance high with no guarantees of environmental improvement • Need for flexibility, which does not exist in SB 128, flexibility could be in the form of accepting alternative mitigation programs. • Unintended consequences (adversely impacting the value of the plants, would hurt paying back of stranded costs).

17. 2005 NH Air Bills- Slide 6(Also could be in Waste Bill Section) • CONSTRUCTION & DEMOLITION (“C&D”) • SB 215- Incineration Study Committee • Bill creates committee to study banning C&D incineration • Passed the Senate • in House ST&E, with a second work Session this week • HB 517 • Bill creates a moratorium on C&D incineration for 1 year, • Creates a 1 year study • Passed the House • in the Senate, with a hearing date yet to be determined in Senate

18. 2005 NH Air Bills- Slide 7 • SB 129- Mobile Source Fees • Any distributor who imports motor fuels, or who causes motor fuels to be imported into this state shall first be licensed with the department of safety. A fee of $.005 per gallon of motor fuel, assessed at the time of importation into this state. With money collected going to newly created mobile source air quality mitigation fund. • BIA supported to extent that it mitigates increases to stationary source pollution fee (which has escalated) • ITL- 3rd rail … potential highway fund. People who own cars, who would pay for this, also vote. • BILL=DEAD

19. 2005 NH Air Bills- Slide 8 • HB 190- Continuos Emissions Monitoring Systems • Bill would have required anyone with an air permit to have a CEM • BIA testified in opposition: • Because CEM’s are often unproven, technology is not there • CEM’s are often very expensive • DES has discretion to mandate CEM’s, and has done so; CEMS’s are conditions of 20 state permits (5% of state facilities have CEM’s) • Bill voted Inexpedient to Legislate

20. 2005 NH Waste Bills- Slide 1 • HB 414- MWC Emissions • Establishes standards for emissions from municipal waste combustion units. • Industry was able to live with these standards. • Much better than alternative legislation (HB 438- ITL), which had same levels, but if MWC had levels lower than acceptable, going forward that was the new threshold number. • EXAMPLE OF ALTERNATIVE BILL LANGUAGE: • 5 ton limit in statute for pollutant X, in year 1 Company A gets tested and they emit 3 tons of X, next year, Company A has to below 3 tons in year 2, if they are over they are over 3 they are in non-compliance, if are under 3, the next number becomes next year’s threshold • HB 414- TO Senate, Hearing this week

21. 2005 NH Waste Bills- Slide 2 • SB 187- Hazardous Waste Coordinator Program • Bill allows commissioner of DES to authorize alternative certified hazardous waste coordinator programs provided the program demonstrates equivalent training, continuing education, and management as the one that only the state can run. • BIA supports, because it provides flexibility, could be cheaper, and would allow for specialization by industry sector. • Passed the Senate, in the House Environment and Agriculture Committee. Work session to be held in next few weeks.

22. 2005 NH Waste Bills- Slide 3 • HB 371- bans the disposal of mercury added products in solid waste or transfer stations • Bill, states that: • No person shall knowingly dispose of mercury-added products in solid waste landfills or transfer stations. • Every person who discards solid waste within the state shall separate mercury-added products from that solid waste for recycling or disposal as a hazardous waste. • Any contractor who replaces or removes mercury-added products shall assure the proper separation and recycling or the disposal as a hazardous waste of any discarded mercury items • After proper separation of mercury-added products, each person who discards that waste lawfully at a collection area, or with a designated and authorized handler • Passed House, sent to Senate, yet to be referred to comm.

23. 2005 NH Waste Bills-Slide 4-Recycling • HB 634- establishes a state-recycling program to provide technical assistance to towns, paid for by a fee on retail goods (rate of 0.000025 percent = approx. $500K). RETAINED IN HOUSE E&A • HB 659-establishes a state-recycling program to provide technical services to towns, paid for by a fee on take-out food and beverages. (rate of 0.001105 percent = approx. $500K. RETAINED • in leiu of fee you can make check to “New Hampshire the Beautiful” • HB 663- establishes a nonprofit NH municipal recycling program- with a board overseeing expenditures- RETAINED

24. CONTACT INFORMATION Michael S. Giaimo, Esq., Vice President Business & Industry Association of New Hampshire 122 North Main Street Concord, New Hampshire 03301 603-224-5388, or 800-540-5388 mgiaimo@nhbia.org (NOTE: If you’d like BIA testimony on a bill, please drop me an email) www.nhbia.org