TITLE X
PUBLIC HEALTH
CHAPTER 146-D
OIL DISCHARGE AND DISPOSAL CLEANUP FUND
Section 146-D:1
[RSA 146-D:1 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:1 Purpose. –
The general court finds that gasoline and diesel fuel, due to their extreme fluidity and suspected carcinogenic qualities, 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 and diesel fuel present a potential threat to the quality of New Hampshire's groundwater and environment because of the speed with which these products are able to flow into, and contaminate, valuable groundwater supplies. The purpose of this chapter is to establish financial responsibility for the cleanup of oil discharge and disposal, and to establish a fund to be used in addressing the costs incurred by the owners of underground storage facilities and bulk storage facilities for the cleanup of oil discharge and disposal, to protect groundwater, and for reimbursement for third party damages. An additional purpose is to provide a funding source for cleanup and reimbursement for discharges of gasoline ethers pursuant to RSA 146-G. The fund established under this chapter shall be in addition to the oil pollution control fund established pursuant to RSA 146-A:11-a, and the gasoline remediation and elimination of ethers fund established under RSA 146-G.
Source. 1988, 271:1. 1993, 40:1. 2001, 293:7, eff. July 1, 2001.
Section 146-D:2
[RSA 146-D:2 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:2 Definitions. –
In this chapter:
I. ""Distributor'' means any person, wherever resident or located, who imports or causes to be imported oil, as defined in this section, into the state, except those using oil pipelines, railroads, and highways to transport oil products between states other than New Hampshire, or for the international transport of oil products; provided, however, that bringing motor fuel into the state in the fuel supply tank attached to the engine of a vehicle or aircraft shall not be considered importing. ""Distributor'' does not mean an oil spill cleanup organization or other person acting to contain, remove, clean up, restore or take other remedial or corrective action or measures with regard to the spillage or discharge of oil, or threatened spillage or discharge of oil.
II. ""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 or petroleum liquids, and which are within the size, capacity and other specifications prescribed by rules adopted by the commissioner pursuant to RSA 146-C:9, VI.
III. ""Oil'' means gasoline and diesel products for purposes of collection of fees under RSA 146-D:3, and shall mean ""oil'' as defined under RSA 146-C:1, XII, for purposes of reimbursement of costs for cleanup and third party damages resulting from a discharge. For the purposes of collecting fees under RSA 146-D:3, the term ""oil'' shall not include natural gas, liquefied petroleum gas, or synthetic natural gas, regardless of derivation or source, or any oil or diesel products used for heating, processing, or generating electricity.
IV. [Repealed.]
V. ""Bulk 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 and distribution of gasoline or diesel products.
VI. ""Commissioner'' means the commissioner of the department of environmental services.
VII. ""Department'' means the department of environmental services.
VIII. ""Gasoline'' means all products commonly or commercially known or sold as gasoline, including casinghead and absorption of natural gasoline, regardless of their classification or uses, and any liquid prepared, advertised, offered for sale, or sold for use as or commonly and commercially used as a fuel in internal combustion engines, which when subjected to distillation in accordance with the standard method of test for distillation of gasoline, naphtha, kerosene, and similar petroleum products (ASTM Designation D-86) show not less than 10 percent distilled (recovered) below 347 degrees Fahrenheit (175 degrees Centigrade) and not less than 95 percent distilled (recovered) below 464 degrees Fahrenheit (240 degrees Centigrade); provided that the term gasoline shall not include commercial solvents or naphthas which distill by ASTM method D-86 not more than 9 percent at 176 degrees Fahrenheit and which have a distillation range of 150 degrees Fahrenheit or less, or liquefied gases which would not exist as liquid at a temperature of 60 degrees Fahrenheit and a pressure of 14.7 pounds per square inch absolute.
IX. ""Diesel fuel'' means a liquid hydrocarbon fuel used in internal combustion high speed engines that operate with a diesel thermodynamic cycle.
Source. 1988, 271:1. 1989, 230:9. 1990, 3:99. 1991, 322:1. 1993, 40:2, 3; 294:3, 17, I. 1995, 247:1. 1996, 228:29, 110. 2001, 293:8, eff. July 1, 2001.
Section 146-D:3
[RSA 146-D:3 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:3 Fund Established; Collection. –
I. There is established an 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 and disposals in the groundwaters and surface waters and soils of the state and in paying third party damages, including administrative, technical and legal support required by the oil fund disbursement board in administering the fund. The fund shall be collected as a fee imposed on all oil imported into this state.
II. Any distributor who imports, or who causes oil to be imported into this state shall first be licensed with the department of safety. A fee of $.015 per gallon of oil shall be assessed at the time of importation into this state. All fees shall be deposited in the oil discharge and disposal cleanup fund established under this chapter. If the fund's balance becomes greater than $10,000,000, the fund assessment fees provided for in this paragraph shall be discontinued and only reestablished when the fund's balance is less than $5,000,000. Any distributor who imports or blends home heating oil which is subsequently sold as diesel fuel for the propulsion of motor vehicles shall report the fuel as required in RSA 146-D:3, III. Any person purchasing home heating oil for diesel use and not declaring this intent to the distributor at the time of purchase shall be liable in the same manner as the distributor would be.
III. The fee provided for in this section shall be collected by agents of the department of safety, in the same manner as provided for in RSA 260:38. Such funds shall be deposited in the oil discharge and disposal cleanup fund established under this chapter. Any person who fails to obtain a license, file a report, or pay the fees established in this chapter shall be subject to the penalties and interest described in RSA 146-A:11-b. The board, pursuant to rules adopted under RSA 146-D:5, may waive all or any portion of such penalties, for good cause.
IV. Moneys collected for the fund 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.
V. No distributor licensed under this section shall import oil into this state without paying the fee required by this section. Any distributor licensed under this section may seek and shall receive for valid claims an import credit for oil which a distributor transfers out of state during any reporting period.
VI. The fee collected on motor fuels shall be deposited in the oil discharge and disposal cleanup fund, except as provided in subparagraph (b), and divided as follows:
(a) A fee of $0.015 shall be assessed for each gallon of diesel fuel.
(b) For each gallon of gasoline for which a fee is assessed, $0.0125 shall be placed in the oil discharge and disposal cleanup fund and $0.0025 shall be placed in the gasoline remediation and elimination of ethers fund established under RSA 146-G.
(c) For all fees assessed on gasoline during the period from January 1, 2001 to July 1, 2001 and deposited in the account for reimbursement of owners of eligible underground storage facilities, 18 percent of those fees shall be transferred to gasoline remediation and elimination of ethers fund established under RSA 146-G.
VII. [Repealed.]
Source. 1988, 271:1. 1989, 230:10. 1990, 3:100, 101; 252:20. 1991, 322:2. 1993, 40:4, 5; 294:4-6. 1995, 247:2, 3. 2001, 293:9, eff. July 1, 2001. 2008, 249:1, 8, eff. July 1, 2008.
Section 146-D:4
[RSA 146-D:4 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
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) Two public members, appointed by the governor with the consent of the council.
(e) Two members of the senate, appointed by the president of the senate.
(f) Two members of the house of representatives, appointed by the speaker of the house.
(g) One member, who shall be a fuel oil dealer, appointed by the governor.
II. The board shall select a chairman from among its members at its organizational meeting.
III. 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.
IV. 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.
V. The terms of the board members shall expire on January 1, 1994. Subsequent terms for state agency and legislative members shall be the same as their terms in office. New board members appointed under subparagraphs I(c) and I(d) shall have 3-year terms, except that the initial term for the member representing the petroleum dealers shall be one year, and the initial terms for the member representing the petroleum distributors and for one of the public members shall be 2 years. 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, including those members whose terms expire as of January 1, 1994.
Source. 1988, 271:1. 1993, 294:7, 8, eff. July 1, 1993; 337:3, eff. Aug. 28, 1993.
Section 146-D:5
[RSA 146-D:5 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:5 Board Powers and Duties. –
I. The board shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Processing applications for compensation from the oil discharge and disposal cleanup fund.
(b) Procedures for verifying claims presented under this chapter.
(c) Specifying costs in relation to reimbursements claimed.
(d) Developing eligibility criteria in addition to the requirements of RSA 146-D:6, I and I-a.
(e) [Repealed.]
(f) Waiver of penalties due or past due under RSA 146-D:3, III.
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 speaker of the house and the president of the senate. The first such report shall be submitted no later than October 1, 1993.
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, or under RSA 146-E and 146-F.
Source. 1988, 271:1. 1990, 141:1, 3, I; 252:21. 1991, 322:3. 1993, 40:6; 294:9. 1997, 39:1, eff. Jan. 1, 1998.
Section 146-D:5-a
[RSA 146-D:5-a repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:5-a Competitive Bidding Required; Rulemaking. –
I. The commissioner of environmental services shall enter into the competitive bidding process for any project undertaken by the department of environmental services under the authority of this chapter with an estimated cost of $10,000 or more. The commissioner may enter the competitive bidding process for any such project with an estimated cost of less than $10,000.
II. The commissioner of environmental services shall comply with RSA 21-I:22--RSA 21-I:22-d for the competitive bidding process to be used under this section.
Source. 1991, 322:7, eff. Aug. 27, 1991. 2007, 138:2, eff. Aug. 17, 2007.
Section 146-D:6
[RSA 146-D:6 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:6 Eligible Expenses. –
I. The portion of the fund for reimbursement of owners of underground storage facilities shall be available to owners of underground storage facilities which are subject to the provisions of RSA 146-C and which are in compliance with New Hampshire Code of Administrative Rules Env-Ws 411. Owners of regulated underground storage facilities with current permits and current records shall be eligible to apply to the fund. Ownership of facilities which have been physically removed or closed in place on or after July 1, 1988 in accordance with the requirements of Env-Ws 411 where cleanup of oil has not yet been completed may be transferred to a new owner, and the new owner shall be eligible to apply to the fund subject to the same compliance requirements as the original owner. After ownership is transferred, only the new owner shall be eligible for reimbursement from the fund.
I-a. The portion of the fund for reimbursement of owners of bulk storage facilities shall be available to owners of bulk storage facilities that are in compliance with all applicable federal and state requirements for such facilities. Ownership of facilities which have been physically removed or closed in place on or after July 1, 1993, in accordance with the requirements of the department where cleanup of oil has not yet been completed, may be transferred to a new owner, and the new owner shall be eligible to apply to the fund subject to the same compliance requirements as the original owner. After ownership is transferred, only the new owner shall be eligible for reimbursement from the fund. Reimbursements shall only be made for costs of cleanup and third party damages associated with gasoline and diesel product spillage. To be eligible for reimbursement, the following registration requirements shall be met:
(a) The owner shall have registered the facility with the department on forms provided by the department which shall include but not be limited to the following information:
(1) Facility name, location, and address.
(2) Owner's name, mailing address and telephone number.
(3) Contact person for the facility.
(4) The storage capacity, product stored, material of construction, and age of the storage tanks and appurtenances.
(b) Bulk storage facilities existing on or before July 1, 1993, shall be registered no later than July 1, 1996. Bulk storage facilities constructed after July 1, 1993, shall be registered no later than 60 days after the completion of construction. The board may waive the registration deadlines established by this subparagraph, on a case by case basis, for good cause.
II. (a) To the extent such amount is expended from the fund, or for such lesser amount as is expended, owners 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 cleanup costs at each facility owned.
(2) The owner of from 4 to 9 facilities shall be responsible for the initial $10,000 of cleanup costs at each facility owned.
(3) The owner of from 10 to 19 facilities shall be responsible for the initial $20,000 of cleanup costs at each facility owned.
(4) The owner of 20 or more facilities shall be responsible for the initial $30,000 of cleanup costs at each facility owned.
(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, but the owner shall be liable to the fund for the amounts set forth in subparagraph II(a). 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.
III. Owners of facilities eligible under this chapter may apply for reimbursement of court-ordered damages to third parties for bodily injury or property damage, and for the costs of onsite and off-site cleanup of oil discharges in amounts not to exceed a total of $1,500,000. 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.
IV. Owners of facilities eligible under this chapter may apply for reimbursement for costs of cleanup and third party damages incurred on or after July 1, 1988.
V. Costs of new tanks and associated piping, or repairs to existing tanks and associated piping, shall not be considered eligible costs under this chapter.
VI. Notwithstanding any provision of this chapter, the department shall not be liable to any eligible party if sufficient funds are not available in the fund to meet the limits established in this chapter. Applications received by the department for which sufficient funds are not available at the time of application shall be held by the department pending availability of funds and shall be reviewed in the order in which they were received.
VII. The board shall pay all eligible costs approved by the board within 30 days of such approval. If any eligible costs are not paid within 30 days, interest on any unpaid amount shall incur to the designated recipient at the rate of 1- 1/2 percent per month. Any interest payments shall be a charge against the fund. Any application for compensation which is deemed to be incomplete by the board or the department of environmental services shall be returned to the applicant forthwith with a written explanation as to what additional information is necessary in order to process the application.
VIII. For underground storage facilities which contain fuel oil as defined in RSA 146-E:2, II or motor oil, or used motor oil, only those facilities at which a release was discovered prior to January 1, 1995, are eligible for reimbursement from the oil discharge and disposal cleanup fund.
IX. Upon payment from the fund for cleanup and corrective action costs or for third party 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.
Source. 1988, 271:1. 1990, 208:11, 13. 1991, 322:4. 1993, 40:7-9; 294:10-13; 337:6. 1995, 247:4-6; 282:2; 282:9. 1996, 228:106, 108, 109. 1997, 39:2, 3. 2001, 33:1, eff. Aug. 7, 2001.
Section 146-D:7
[RSA 146-D:7 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
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 a fund under RSA 146-D:6, RSA 146-E:6, or RSA 146-F:5 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. 1988, 271:1. 1997, 39:4. 1998, 357:3, eff. July 1, 1998.
Section 146-D:8
[RSA 146-D:8 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:8 Administrative Costs. –
I. Notwithstanding any provision of law, if the expenditure of additional funds is necessary for the costs of administration of the collection process established in RSA 146-A:11-b, II and III, upon request of the commissioner of safety, the governor and council, upon recommendation of the oil fund disbursement board and with the prior approval of the fiscal committee of the general court, may authorize the transfer of funds from the oil discharge and disposal fund established under RSA 146-D:3, I to the department of safety for such purposes.
II. [Repealed.]
III. The commissioner of safety shall file reports with the oil fund disbursement board on a quarterly basis, relative to the administrative costs of the department's collection activities under RSA 146-D:3, III. Such report shall include detailed accounting of such costs, including procedures taken to separate such costs from any other administrative costs incurred by the department relative to any other statutory responsibilities of the department.
Source. 1988, 271:1. 1990, 141:2, eff. June 18, 1990; 141:3, II, eff. June 30, 1992.
Section 146-D:9
[RSA 146-D:9 repealed by 1988, 271:9, VIII, eff. July 1, 2015.]
146-D:9 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. 1988, 271:1, eff. July 1, 1988.