Amendment 2023-1979h to SB61 (2023)

Relative to surface water setbacks for landfills.

Revision: May 25, 2023, 12:37 p.m.

Rep. Bixby, Straf. 13

May 23, 2023





Amendment to SB 61


Amend the bill by replacing sections 4-7 with the following:


4  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)  If a permit application includes any measure pursuant to RSA 149-M:9, XV(a) and the department relies on such measure in the department's formulation of the site-specific setback required by RSA 149-M:7, III-a, the department shall include such measure as a condition to the permit.

5  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 include in the request for proposals provisions designed to prevent a situation, circumstance, or financial interest which has the reasonable potential to cause a prospective contractor's interest to interfere with the contractor's duties under the request for proposals and require disclosure in the response to the request for proposal submission by the consulting form or individual.  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;

(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; and

(e)  Disclosure of any potential conflicts of interest.

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 provide the senate energy and natural resources committee and the house environment and agriculture committee with electronic copies of the report and 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.

6  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.  Notwithstanding paragraph IV, 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.

IV.  If the department is unable to complete the adoption of rules as required under this section as a result of a natural disaster, civil emergency, epidemic or pandemic, or other extraordinary circumstance substantially interfering with the customary operation of the department or state government, the commissioner may file for a waiver to extend the deadline under RSA 541-A:40, IV.  During such time, the abeyance of approval of applications as outlined in subparagraph I(b) of this section shall continue in effect for no more than 90 days.

7  Appropriation; Department of Environmental Services.  The sum of $200,000 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.