By: Tom Burack, Lynn Preston and Robert Cheney
April 10, 2020
April 15 Deadline for Filing Annual Air Emission Reports Extended to May 15!
Temporary relief from some deadlines and requirements is on its way under various New Hampshire regulatory programs, starting with regulations administered by the New Hampshire Department of Environmental Services (NHDES). On Thursday, April 9, 2020, Governor Sununu issued Emergency Order #29, entitled, “Temporary modification to executive branch deadlines and requirements,” directing state agencies, boards and commissions to submit recommendations regarding regulatory and statutory deadlines and other requirements that should be temporarily adjusted or modified in light of the COVID-19 pandemic situation. At the same time, Emergency Order #29 directs that, “Notwithstanding any modification, Government entities of the State of New Hampshire shall endeavor to perform all duties to the best of their abilities and as expeditiously as possible.”
The first department out of the gate is NHDES, whose deadline extensions and other highly specific elements of relief for regulated parties and, in some instances, for NHDES staff are described in Exhibit A to the Governor’s Executive Order. The NHDES provisions may be illustrative and predictive of the kinds of temporary relief or modifications that other agencies may ultimately provide. For example, because NHDES administers a large number of licensing and certification programs, many of which have annual or periodic in-person training requirements, Exhibit A provides, “No certification, license, or other approval, the renewal of which is dependent upon the availability of department training, shall expire prior to the department offering such training.” Although unstated, implicit in this provision is an expectation that certified or licensed individuals or entities will still timely submit any other associated paperwork or renewal fees, although certain types of licenses are specifically extended past the end of the declared state of emergency (e.g., asbestos licenses or certifications for 180 days, and hazardous waste coordinator certifications for 90 days).
Of immediate significance for many, Exhibit A also extends to May 15 the current April 15 deadline for submission of annual emission reports and to June 15 the deadline for payment of annual emission-based fees. Various other deadlines are also extended, such as the requirement to file a new application 6 months in advance of the expiration of any non-Title V air pollution permit that would otherwise expire during the state of emergency. Importantly, however, Exhibit A does not suspend the applicability of any environmental laws or rules, grant any legal immunity, or provide a basis for otherwise failing to comply. All parties whose activities are regulated by NHDES are advised to carefully review the details of Exhibit A to ensure that they fully understand its implications for themselves or their operations. Emergency Order #29 and its Exhibits can be found here: https://www.governor.nh.gov/news-media/emergency-orders/documents/emergency-order-29.pdf
All entities regulated in any fashion by the State of New Hampshire will be well-served by keeping an attentive eye on the Governor’s Office website listing of Emergency Orders (see https://www.governor.nh.gov/news-media/emergency-orders/index.htm), including future exhibits under Emergency Order #29 for other agencies. Finally, if a party is aware of a state statutory or regulatory deadline or requirement that they believe should be extended or modified under this Emergency Order, they can share their ideas with the applicable agency.