564-A:3-a Powers of Fiduciaries in Environmental Matters; Costs; Liability. –
I. The general court has determined that it will benefit the public health, safety, and welfare to empower fiduciaries to assess fiduciary property to determine environmental condition, to prevent and remediate contamination, and to otherwise bring fiduciary property into compliance with environmental laws.
II. In this section:
(a) "Environmental laws" means any federal, state or local law, rule, regulation, or ordinance relating to protection of the environment or human health.
(b) "Fiduciary" means any individual, partnership, corporation, firm, or any other entity and any officer, employee, or agent of such fiduciary, who is acting in any of the following capacities:
(1) Executor, administrator, guardian, or conservator.
(2) Trustee under a will or inter vivos instrument creating a trust under which the trustee takes title to, or otherwise controls or manages, property for the purpose of protecting or conserving such property under the ordinary rules applied in the probate courts of this state.
(3) Court-appointed receiver.
(4) Trustee appointed in proceedings under federal bankruptcy laws.
(5) Assignee or trustee acting under an assignment made for the benefit of creditors under the laws of this state.
(6) Trustee pursuant to an indenture agreement or similar financing agreement for debt securities, certificates of interest of participation in any such debt securities, or any successor to any of the foregoing.
(c) "Hazardous substances" mean oil as defined in RSA 146-A:2, III or any substance defined as hazardous or toxic under RSA 147-A:2, VII or otherwise regulated by any environmental laws.
III. Unless expressly limited by the instrument, judgment, decree, or order establishing the fiduciary relationship, a fiduciary shall have, in its discretion, the following powers, provided that the fiduciary shall disclose in writing to the person or persons to whom the fiduciary sends communications or statements relating to the property held in a fiduciary capacity, the fiduciary's intent to exercise any or all of the authority granted in this section prior to the first exercise of such authority:
(a) To inspect and monitor real and personal property to which the fiduciary takes legal title (including, without limitation, interests in sole proprietorships, partnerships, or corporations and any assets owned by such business enterprises) or over which a fiduciary may exercise control, for the purposes of determining compliance with environmental laws affecting such property, and to respond to actual or threatened violations of any environmental laws affecting such property held or controlled by the fiduciary.
(b) To take, on behalf of an estate, person or business, any action necessary to prevent, abate, or otherwise remedy any actual or threatened release of hazardous substances or violation of any environmental laws affecting real or personal property held or controlled by the fiduciary, either before or after the initiation of an enforcement action by any government body.
(c) To refuse to accept real or personal property in trust if:
(1) Such property either is or may be contaminated by any hazardous substances, or such property is being used or has been used for any activities directly or indirectly involving hazardous substances, which could impair the value of the assets therein held or controlled; or
(2) Such property may be in violation of any environmental laws.
(d) To settle or compromise, at any time, any and all claims against the estate, trust, person or business which may be asserted by any governmental body or private body, involving the alleged release or threatened release of hazardous substances and the alleged violation of any environmental laws affecting real or personal property held by the estate or trust or owned by the person or business.
(e) To release or disclaim at any time or times any power granted by any document or any statute or rule of law which, in the sole discretion of the fiduciary, may expose the fiduciary to liability in the fiduciary's individual capacity under the environmental laws or impair the value of the assets retained or controlled by the fiduciary.
IV. A fiduciary may charge the reasonable cost of any abatement, cleanup, inspection, assessment, insurance, database review, monitoring, or any other response or remedial action, as authorized under this chapter, against the income or principal for the estate, trust, personal estate, or business assets, and shall not be personally responsible therefor.
V. (a) Nothing in this section shall be construed to alter or affect a fiduciary's liability or obligations as otherwise established by environmental laws. The fiduciary's failure to exercise powers granted under this section in and of itself shall not create a cause of action against the fiduciary. A fiduciary shall not be liable in its individual capacity to any beneficiary or any other party for any action taken with the approval of a governmental agency with responsibility for environmental compliance. A fiduciary shall not be liable in its individual capacity to a beneficiary or any other party for any other action taken to:
(1) Assess potential environmental contamination of fiduciary property; or
(2) Bring fiduciary property into compliance with environmental laws where the fiduciary acts reasonably and prudently.
(b) In particular, a fiduciary shall not be liable for any decrease in value or exhaustion of assets by reason of actions taken in accordance with this section.