Recent Developments in Environmental Law

Photo of Gregory H. Smith
Gregory H. Smith
Director & Chair, Administrative Law Department and Managing Director of State Capital Office
Barry Needleman Headshot
Barry Needleman
Managing Director and Director, Administrative Law Department
January 1, 2000

We have surveyed developments during the last year in environmental programs. This article briefly summarizes several recent changes in federal and State environmental regulation that will be of direct interest to New Hampshire businesses and individuals.

Air Toxics

The long-awaited revisions to New Hampshire’s air toxics control program are nearing completion. The Air Resources Division has prepared a list of over 750 proposed regulated toxic air pollutants which generally includes both short and long term Ambient Air Limits (AALs) for each substance. The list was proposed in November 1997 and is presently open to public comment. DES will hold a hearing on February 26, 1998, at 10:00 a.m., regarding this proposed list and hopes to begin implementing it as soon as March of 1998. New and modified sources will have to comply with the revised standards immediately; compliance for existing sources will be phased in over time. The list, which is the centerpiece of the revised air toxics program, includes proposed “de minimis” AALs for each substance. Entities emitting regulated substances below these thresholds will be exempt from the regulatory process, though some issues still remain regarding implementation.


EPA released its long awaited mercury report in late 1997, which now clears the way for states to start preparing specific strategies to reduce mercury emissions. A DES workgroup has been developing a New Hampshire mercury reduction strategy which will purportedly focus on specific actions that can be taken to reduce mercury emissions. The State hopes to release that strategy early in 1998.

Industry Average Performance Standards

A bill introduced in the New Hampshire Legislature by Rep. Jeffrey McGillivray, R-Brookline, that would have established Industry Average Performance Standards for certain types of air pollution, was narrowly defeated when HB 643-FN, which was designed to harness market forces in an effort to reduce air pollution by industry categories, would have created a system of financial incentives intended to reward entities whose emissions were below an industry average and penalize emitters that exceeded that average. Although the Bill was defeated, other aspects of New Hampshire’s air program that utilize market-based incentives, including the emissions credit trading program, are continuing to evolve. In fact, temporary rules are in place to implement the credit trading program and some sources are in the process of generating emissions credits.

Revised Solid Waste Rules

Revised solid waste rules adopted last November contain several important changes, most notably regarding the permitting process. For example, facilities storing waste in transit, those that handling certain processed recyclable materials and, in limited cases, those that stopped receiving waste before July 10, 1981, have been exempted from permitting requirements. In addition, permitting has been streamlined for facilities handling fewer than 30 tons per day of waste that was generated in New Hampshire. Moreover, a properly filed application now serves as the permit and some permit modifications can now be accomplished by notifying DES, rather than by obtaining a new permit.


If there are particular areas of environmental regulations with which you are concerned, we would be glad to provide you with specific information on program changes. You can reach us at (603) 226-0400 or