Section 125-J:5 - Use of Emissions Reduction CreditsI. The department shall maintain and publish on January 1 and July 1 of every year a list of emissions reduction credit certificates which have been issued. The department shall update the list on a monthly basis no later than the 10th day of the month, and shall make the updated list available upon request under RSA 91-A. An emissions reduction credit certificate and the ERCs represented thereon shall be transferable among and between persons, as defined in RSA 125-C:2, X, and the state upon 7 days' prior written notice to the department.II. Emissions reduction credits may be received, held, and transferred for so long as the credits are certified by the department. Any person as defined in RSA 125-C:2, X and the state may transfer any amount of ERCs at any time during the calendar year as provided in this chapter.III. Emissions reduction credits may be used by a device or source to satisfy any requirement under the Clean Air Ac t or RSA 125-C for offsets, RACT, bubbling and netting, in accordance with the provisions of this chapter and as otherwise provided by the Clean Air Act and RSA 125-C. Emissions reduction credits shall not be used by a device or source to meet the requirements of, or result in a violation of, federal New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAPS), the requirements for Lowest Available Emission Rate (LAER), the requirements for Best Available Control Technology (BACT), the requirements for Maximum Available Control Technology (MACT), any National Ambient Air Quality Standard for criteria pollutants, any Prevention of Significant Deterioration (PSD) increment, or any reduction required as the result of any state or federal enforcement action, consent agreement, or court order.IV. ERCs to be used in satisfying any offset requirement under the Clean Air Act or RSA 125-C, and the regulations and rules promulgated thereunder, respectively, shall be transferred on a permanent basis. ERCs to be used in satisfying any RACT requirement under the Clean Air Act or RSA 125-C and the regulations and rules promulgated thereunder, respectively, may be transferred on a temporary or permanent basis.V. ERCs held for future use in any calendar year shall not be aggregated for any purpose with ERCs certified for use in any other calendar year.VI. ERCs to be used for the purpose of satisfying any RACT requirement shall have been obtained by the same source or device or another source or device in the same nonattainment area. ERCs to be used for the purpose of satisfying any offset requirement shall have been obtained in accordance with the Clear Air Act and RSA 125-C and the rules promulgated thereunder.VII. Emissions reduction credits which have been certified to, or emissions reductions which are eligible for certification to, a device or source which shuts down its production operations shall be shutdown emissions credits and shall revert to the state for use consistent with this chapter, except where such ERCs are to be used at other devices and sources within the state by the person or persons who owned, operated or controlled the device or source that was shutdown.VIII. Shutdown emissions credits obtained by the state pursuant to this chapter shall be used or held for use by the governor and council for meeting any requirement of the state implementation plan, any attainment demonstration under the Clean Air Act, or for the transfer to new or existing devices and sources in the state which require offsets under the Clean Air Act. No less than 75 percent of shutdown emissions credits generated in serious nonattainment areas shall be applied to requirements applicable in serious nonattainment areas.IX. Transfers of shutdown emissions credits to new or existing sources and devices to meet offset requirements shall be temporary in nature and at no cost, except as otherwise provided in this section. An owner of a source or device who desires to receive a transfer of credits shall file an application with the department setting forth the following information:(a) Whether and to what extent the acquisition of the credits will result in job retention;(b) How use of the credits will result in economic development in New Hampshire;(c) Whether the applicant's company offers prospects for long-term growth and job creation;(d) Whether the applicant's company is a New Hampshire business or is relocating to New Hampshire;(e) The market value of the credits and the information used to make such determination;(f) The date that the applicant submitted or will submit to the department an application for an air permit under RSA 125-C:11, which shall be a prerequisite for the transfer of credits;(g) The air quality classification of the area where the source or device will be located;(h) The date that the source or device is estimated to commence operation; and(i) The number of offsets required to comply with requirements of the Clean Air Act.X. The department shall review the application and provide the governor and council with a written recommendation that addresses the information submitted by the applicant. Priority shall be given to applications that result in job retention and that assist existing New Hampshire businesses.XI. An applicant that receives a transfer of shutdown emissions credits from the governor and council shall:(a) Return the credits to the state, upon notice of the department, if the applicant's permit application under RSA 125-C:13 is denied or the source or device is not constructed or fails to commence operation; or(b) Within 18 months of commencing operation of the source or device: (1) Return the shutdown emissions credits to the state and acquire the necessary ERCs from elsewhere to continue operation, as approved by the department; or(2) If some or all of the necessary ERCs to continue operation are not readily available to the applicant, as determined by the department, retain such quantity of shutdown emissions credits and purchase them from the state at a value, as can best be determined by the department, that will enable the state to later acquire a number of ERCs equal to the number of shutdown emissions credits retained and purchased by the applicant. If the department does not anticipate that ERCs will be readily available in the foreseeable future for the state to purchase, the governor and council shall determine the purchase value of the retained shutdown emissions credits after receipt of a written recommendation from the department.XII. Funds from the sale of shutdown emissions credits shall be deposited in a special account within the air resources permit fund to be used by the governor and council for the acquisition and generation of ERCs that shall be used for the same purposes and administered in the same manner as shutdown emission credits.XIII. The use of emissions reduction credits by a utility, as defined in RSA 362:2, shall be subject to such additional conditions as ordered pursuant to applicable law by the public utilities commission.1994, 397:2. 1999, 46:3. 2010, 127 : 1 , eff. June 9, 2010.