TITLE X
PUBLIC HEALTH

Chapter 146-D
OIL DISCHARGE AND DISPOSAL CLEANUP FUND

Section 146-D:1

    146-D:1 Purpose. – The general court finds that gasoline, gasoline ethers and tertiary butyl alcohol (TBA), diesel fuel, heating oil, motor oil, and used motor oil, comprise a sufficiently distinct class of property which represents a potential serious health and safety problem to the citizens of New Hampshire. In particular, gasoline, gasoline ethers, TBA and diesel fuel present a potential threat to the quality of New Hampshire's groundwater, environment and public health of its citizens, because of the speed with which these products are able to flow into, and contaminate, valuable groundwater supplies. In addition, the cost of cleanup of oil discharges is a significant economic burden for which economic assistance is otherwise not available. The purpose of this chapter is to establish financial responsibility for the cleanup of oil discharges and disposal, and to establish a fund to be used in addressing the costs incurred by the owners of public and private water supplies, oil storage facilities, and potential contamination source properties for the prevention and cleanup of oil discharges, to protect groundwater, and for reimbursement of third party damages.

Source. 2015, 142:9, eff. July 1, 2015.

Section 146-D:2

    146-D:2 Definitions. –
In this chapter:
I. "Above ground storage facility" means a location not regulated under RSA 146-C, consisting of a system of storage tanks, pipes, pumps, and appurtenant structures, singly or in any combination, with a total storage capacity less than or equal to 1,100,000 gallons, which is or has been used for the storage of gasoline and blends, diesel fuel and blends, or oil for on-premise-use heating.
II. "Commissioner" means the commissioner of the department of environmental services.
III. "Department" means the department of environmental services.
IV. "Motor oil storage facility" means a location consisting of a system of storage tanks, pipes, pumps, and appurtenant structures which is, or has been, used for the storage of motor oil or used motor oil.
V. "Oil" means "oil" as defined in RSA 146-A:2, III.
VI. "On-premises-use facility" means a system of storage tanks, pipes, pumps, and appurtenant structures, singly or in any combination, which is or has been used for the storage of fuel oil for on-premise heating.
VII. "Potential contamination source" means a "potential contamination source" as defined in RSA 485-C:7, II.
VIII. "Underground storage facility" means a location consisting of a system of underground storage tanks, pipes, pumps, vaults, fixed containers and appurtenant structures, singly or in any combination, which are used or designated to be used for the storage, transmission, or dispensing of oil, and which are within the size, capacity and other specifications prescribed by rules adopted by the commissioner pursuant to RSA 146-C:9, VI.

Source. 2015, 142:9, eff. July 1, 2015.

Section 146-D:3

    146-D:3 Fund Established. –
I. There is established a nonlapsing oil discharge and disposal cleanup fund. This fund shall be used, consistent with the provisions of this chapter, to reimburse costs incurred in cleaning up oil discharges in the groundwater and surface waters and soils of the state and in paying third party damages.
II. The fund shall also be used to pay administrative, technical and legal support required by the oil fund disbursement board in administering the fund, including collection of import fees under RSA 146-A:11-b.
III. Moneys in the fund not currently needed to meet the obligations of the board under this chapter shall be deposited with the state treasurer to the credit of said fund and may be invested as provided by law. Interest received on such investment shall also be credited to the fund.

Source. 2015, 142:9, eff. July 1, 2015. 2017, 102:1, eff. Aug. 7, 2017.

Section 146-D:4

    146-D:4 Oil Fund Disbursement Board Established; Membership. –
I. There is established the oil fund disbursement board, to be composed of the following members:
(a) The commissioner of environmental services, or his designee.
(b) The commissioner of safety, or designee.
(c) Three members representing petroleum dealers, distributors, and refiners, appointed by the governor with the consent of the council.
(d) One member, representing fuel oil dealers, appointed by the governor with the consent of the council.
(e) Two public members, appointed by the governor with the consent of the council.
(f) Two members of the senate, appointed by the president of the senate.
(g) Two members of the house of representatives, appointed by the speaker of the house of representatives.
II. The board members shall serve without compensation, except that all non-legislative members shall be reimbursed for mileage incurred on board business at the state employee mileage rate. The legislative members shall be reimbursed for mileage at the legislative rate. Such reimbursements shall be a charge against the oil discharge and disposal cleanup fund established under RSA 146-D:3, I.
III. Any member of the board having an individual interest, or an interest in another business, which may conflict with an issue under consideration by the board, shall not participate in any deliberations or vote of the board on the issue before the board.
IV. Terms for state agency and legislative members shall be the same as their terms in office. Board members appointed under subparagraphs I(c), I(d) and I(e), shall have 3-year terms. Upon term expiration, each appointed member shall hold office until a successor shall be appointed and qualified. Board members may be reappointed to subsequent terms.

Source. 2015, 142:9, eff. July 1, 2015.

Section 146-D:5

    146-D:5 Board Powers and Duties. –
I. The board shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Organization and procedural rules.
(b) Processing applications for reimbursement from the oil discharge and disposal cleanup fund.
(c) Procedures for verifying reimbursement claims presented under this chapter.
(d) Specifying costs in relation to reimbursements claimed.
(e) Developing eligibility criteria in addition to the requirements of RSA 146-D:6.
II. The board shall submit an annual report of the status of the oil discharge and disposal cleanup fund no later than October 1, to the governor and council, speaker of the house, president of the senate, house environment and agriculture committee and senate environment committee.
III. The board, with approval of the governor and council, may employ legal counsel as necessary to perform its duties in administering the oil discharge and disposal cleanup fund.
IV. The board may request that the attorney general issue subpoenas, examine witnesses, or request any other information on behalf of the board for the purposes of determining eligibility for reimbursement under this chapter.

Source. 2015, 142:9, eff. July 1, 2015.

Section 146-D:6

    146-D:6 Eligible Expenses and Availability of Funds. –
I. The fund shall be available for reimbursement of costs incurred by owners of public and private water supplies due to oil contamination from an unknown source. This may include, but not be limited to, bottled water and interim treatment systems, a proportioned share of the costs of construction of the extension of public water mains and appurtenances, the installation of replacement water supply wells and appurtenances, or the installation of water treatment processes. Operation and maintenance costs or annual user fees for new or upgraded public water supply main extensions or treatment processes shall not be eligible expenses under this paragraph.
II. The fund shall be available for reimbursement of costs for court-ordered damages to third parties or bodily injury or property damage due to oil contamination incurred by owners of oil storage facilities and owners of land where compliant oil storage facilities were located, and for the costs of on-site and off-site cleanup of oil contamination incurred by owners of oil storage facilities, owners of land where compliant oil storage facilities were located, and owners of potential contamination source properties contaminated by gasoline ethers.
III. Owners of on-premises-use facilities who have demonstrated financial need may apply for reimbursement of costs to meet local and department operating standards in amounts not to exceed a total of $3,300, and may apply for reimbursement of underground storage tank abandonment or removal costs in amounts not to exceed a total of $2,500.
IV. Reimbursement under paragraph II of this section shall be limited as follows:
(a) Owners of oil storage facilities and potential contamination source properties shall demonstrate compliance with department rules and best management practices for facility operation.
(b) Owners of on-premises-use facilities, or owners of land where facilities are or were located, shall be eligible for reimbursement in amounts not to exceed a total of $500,000, incurred on or after October 1, 1992.
(c) Owners of above ground and underground storage facilities or land where facilities were located shall be eligible in amounts not to exceed a total of $1,500,000, incurred on or after July 1, 1988. After the initial $1,500,000 is reimbursed, owners may apply for reimbursement of additional onsite and off-site cleanup costs in amounts not to exceed a total of $500,000.
(d) Owners of motor oil storage facilities or land where facilities were located shall be eligible in amounts not to exceed a total of $500,000, incurred on or after July 1, 1995.
(e) Owners of potential contamination source properties shall be eligible for costs incurred on or after July 1, 2001.
V. (a) To the extent such amount is expended from the fund, or for such lesser amount as is expended, owners of above ground storage facilities, motor oil storage facilities, and underground storage facilities shall be liable to the fund for the following:
(1) The owner of from one to 3 facilities shall be responsible for the initial $5,000 of costs at each facility owned.
(2) The owner of from 4 to 9 facilities shall be responsible for the initial $10,000 of costs at each facility owned.
(3) The owner of from 10 to 19 facilities shall be responsible for the initial $20,000 of costs at each facility owned.
(4) The owner of 20 or more facilities shall be responsible for the initial $30,000 of costs at each facility owned.
(5) The owner of land where compliant facilities were located shall be responsible for the lesser of the initial $5,000 of cleanup costs at each location owned or the balance of the prior facility owner's initial cleanup cost liability at each such location.
(b) This amount shall not be withheld from reimbursement when the reimbursement is disbursed from the fund over to a party other than an owner liable under this paragraph. The board may pursue the owner in an independent legal action, and the owner shall be liable for interest from the date that the disbursement is made and for legal fees and costs incurred by the fund in obtaining and enforcing judgment under this paragraph. All amounts recovered shall be paid into the fund.
VI. Owners of on-premises-use facilities shall be liable to the fund for the initial $500 of cleanup costs at each facility owned. For owners receiving financial assistance under paragraph III, the liability for initial cleanup costs shall be $100.
VII. For owners of above ground storage facilities, motor oil storage facilities, on-premise-use facilities and underground storage facilities, the fund shall be deemed excess insurance over any other valid and collectible insurance for the costs of cleanup and damages to third parties. There shall be no right of recovery against the fund for payments made under other insurance.
VIII. Notwithstanding any provision of this section, the board shall not be liable to any eligible party if sufficient funds are not available to meet the limits established in this section. Reimbursement requests received for which sufficient funds are not available at the time of receipt shall be held pending availability of funds and shall be reviewed in the order in which they were received, in consideration of environmental and human health risks.
IX. All cleanup work plans approved by the department and reimbursement requests approved for payment by the board shall be considered an obligation against any balance in the fund not needed to pay administrative, technical and legal support required by the board, including collection of import fees under RSA 146-A:11-b.
X. Upon payment from the fund for cleanup and corrective action costs or for third party to liability costs pursuant to this chapter, the right of an owner to recover any payment from any third party potentially responsible for such costs shall be assumed by the board to the extent of payment made from the fund. An owner shall not receive multiple compensation for the same injury, and any such compensation shall be repaid to the fund.
XI. Costs of new tanks and associated piping, or repairs to existing tanks and associated piping, for oil storage facilities regulated under RSA 146-A and RSA 146-C shall not be considered eligible costs under this chapter.

Source. 2015, 142:9, eff. July 1, 2015. 2017, 102:2, eff. Aug. 7, 2017. 2022, 188:6, eff. Jan. 1, 2023.

Section 146-D:7

    146-D:7 Penalties. –
I. Any person who violates the provisions of this chapter shall be subject to the lien provisions provided in RSA 260:63 through RSA 260:65-a.
I-a. Where any liability to the fund under RSA 146-D is not paid as prescribed by the oil fund disbursement board, the amount, including interest together with the costs that may accrue in addition thereto, shall become a lien in favor of the board upon all property and rights to property, whether real or personal, in the same manner as that prescribed in RSA 260:63 through RSA 260:65-a, which provisions shall govern the board's imposition and enforcement of the lien created by this section.
II. Any person who misrepresents any material fact or submits any false material statement, information, or certification to the board shall forfeit any right to reimbursement under this chapter.
III. Any person who recklessly or knowingly misrepresents any material fact or who recklessly or knowingly submits any false material statement, information, or certification to the board shall be guilty of a class B felony if a natural person and guilty of a felony if any other person. Notwithstanding RSA 651:2, a person may, in addition to any sentence of imprisonment, probation, or conditional discharge, be fined not more than $25,000 if found guilty of any violation under this paragraph.

Source. 2015, 142:9, eff. July 1, 2015.

Section 146-D:8

    146-D:8 Board Administratively Attached. – The oil fund disbursement board shall be administratively attached to the department of environmental services pursuant to RSA 21-G:10.

Source. 2015, 142:9, eff. July 1, 2015.