I. For the purposes of this section:
(a) “Best available control technology” means an emission limitation based on the maximum degree of reduction for each air contaminant that would be emitted from any device that the department, on a case-by-case basis, taking into account energy, environmental, public health, and economic impacts and other costs, determines is achievable for such device through application of production processes or available equipment, methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such air contaminant.
(b) “Exempt fuel” means coal, natural gas, landfill gas, digester or bio gas, untreated wood, virgin petroleum products, biodiesel, as defined by N.H. Rev. Stat. § 362-A:1-a, I-b, or any mixture thereof.
II. Except as provided in paragraph VII, the construction, installation, operation, or modification of any device located at an affected source that will combust any material shall be prohibited without first applying for and obtaining a permit from the department that establishes emission limitations for such device based on best available control technology for controlling any particulate matter, mercury, or dioxin emissions from such device. Any material to be combusted in such device that is not an exempt fuel shall be certified as complying with standards established by the department. As part of the application for a permit, the affected source shall demonstrate that such standards and certification shall be complied with during facility operation. The permit shall contain inspection, testing, and reporting requirements to ensure such standards are met. The permit shall establish procedures for sampling and testing appropriate to the material to be combusted using US EPA SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, and applicable American Society for Testing and Materials sampling methods or alternate sampling and testing methods approved by the department.
III. If stack testing results show that emissions from a device are less than but within 10 percent of the emission limitation for a specific air contaminant established under paragraph II for the device, the affected source shall install a department approved continuous emission monitor (CEM) for that air contaminant. If a department approved CEM is not available for that air contaminant, the affected source shall submit a plan, including monitoring and stack testing requirements, for ensuring that the emissions limitation for that air contaminant is not exceeded until such time as a department approved CEM for that air contaminant becomes available. Once a department approved CEM is available, the affected source shall install that CEM within 24 months of department approval of the CEM.
IV. Once the department has established an emission limitation for one or more air contaminants under paragraph II for a device based on best available control technology, no further best available control technology determination for the emission of such air contaminant or air contaminants from such device shall be required for such period of time as specified in rules of the department, unless there is a modification of the device.
V. Any determination by the department pursuant to paragraph II, shall be subject to the following:
(a) In no event shall application of best available control technology result in:
(1) Emission of any air contaminant that would exceed the emissions allowed by any applicable standard under N.H. Rev. Stat. Chapter 125-C or N.H. Rev. Stat. Chapter 125-I or rules adopted pursuant to either chapter; and
(2) Emission of any air contaminant specified in paragraph II in an amount disproportionate to the emissions of such air contaminant from other similar air pollution control devices for that air contaminant at facilities using similar combustion technology and similar fuels.
(b) If the department determines that a device emits more than one of the air contaminants specified in paragraph II, or that the affected source has more than one device that emits such air contaminants, the department shall determine best available control technology emission limitations for all such devices and all such air contaminants emitted.
VI. If, prior to the effective date of this section, the department made under other authority a best available control technology determination for any air contaminant specified in paragraph II for any existing device and established in a permit issued pursuant to this chapter an emission limitation for such air contaminant, then no determination of best available control technology pursuant to paragraph II for such air contaminant from such device shall be required for such period of time as specified in rules of the department, unless there is a modification of the device.
VII. This section shall not apply to:
(a) A municipal waste combustor that is subject to RSA 125-M;
(b) Chemical recovery combustion sources at pulp and paper mills subject to 40 C.F.R. § part 63, Subpart MM;
(c) A device at an affected source that combusts material of which at least 90 percent by weight is exempt fuel;
(d) An affected source that is within a listed source category and subject to a performance standard or emission guidelines established by the United States Environmental Protection Agency pursuant to either section 111 or section 112 or section 129 of the Clean Air Act, provided that these standards and guidelines are at least as stringent as those achieved by applying best available control technology as specified under paragraph II;
(e) A device at an affected source that, on the effective date of this section, routinely combusts any material other than a material specified in subparagraph (c) under a permit issued by the department, unless there is later a modification of such device; or
(f) A device at an affected source with emissions of particulate matter, mercury, or dioxin below threshold levels established by rules of the department.