TITLE X
PUBLIC HEALTH

Chapter 146-C
UNDERGROUND STORAGE FACILITIES

Section 146-C:1

    146-C:1 Definitions. –
In this chapter:
I. "Department" means the department of environmental services.
I-a. [Repealed.]
I-b. "Commissioner" means the commissioner of the department of environmental services.
II. "Discharge" means the release or addition of any oil or hazardous substance to land, groundwater or surface water.
III. "Disposal" means deposit, discharge, injection, dumping, spilling, leaking, leaching, or placing of oil or hazardous substance into or on any land, groundwater or surface water.
IV. "Existing facility" means a facility the construction or installation of which began prior to September 17, 1985.
V. "Facility" means an assemblage of tanks, pipes, pumps, vaults, fixed containers, and appurtenant structures, singly or in any combination, which are used or designed to be used for the storage, transmission, or dispensing of oil or a hazardous substance, and which are within the size, capacity, and other specifications prescribed by rules adopted by the department pursuant to RSA 146-C:9, VI.
VI. "Failure" means a condition which may or does allow the uncontrolled passage of oil or a hazardous substance into or out of a facility, and includes, but is not limited to, a discharge to the groundwater or surface water of the state without a permit issued pursuant to RSA 146-C:4.
VII. "Groundwater" means subsurface water that occurs beneath the water table in soils and geologic formations.
VII-a. "Hazardous substance" means material defined as a regulated substance under 42 U.S.C. 6991(2)(A) in addition to any material designated as a hazardous substance pursuant to RSA 146-C:9, VI-a.
VII-b. (a) "Fiduciary" means a person:
(1) Who is acting in any of the following representative capacities, but only to the extent such person is acting in such representative capacity: an executor or administrator of an estate, including a voluntary executor or a voluntary administrator; a guardian; a conservator; a trustee under a will 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 courts of the state of New Hampshire; a court-appointed receiver; a trustee appointed in proceedings under federal bankruptcy laws; an assignee or a trustee acting under an assignment made for the benefit of creditors; a trustee under a revocable or irrevocable donative or estate-planning inter vivos trust; or a 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 thereto; and
(2) Who holds legal title to, controls, or manages, directly or indirectly, any facility as a fiduciary for purposes of administering an estate or trust of which such facility is a part; and
(3) Who is otherwise not engaged in petroleum production, refining, or marketing.
(b) Any person or entity acting as trustee of a business trust, a realty trust, a real estate trust, a nominee trust, or any similar trust shall not be considered a "fiduciary" under this chapter.
VII-bb. "Foreclosure" means any foreclosure by a holder of a mortgage lien, or, in the case of a tax lien, the conveyance of property by tax deed by a municipality, county or state pursuant to the procedures of RSA 80:20-RSA 80:42-a or of RSA 80:58-RSA 80:86.
VII-c. "Holder" means a person who holds indicia of ownership primarily to protect a mortgage interest or security interest in real or personal property on or at the facility and who is otherwise not engaged in petroleum production, refining or marketing.
VII-d. "Indicia of ownership" means evidence of a mortgage lien, a security interest, or other interests in real or personal property securing payment or performance of a loan or other obligation.
VII-dd. "Mortgage interest" and "mortgage lien" mean a mortgage lien, tax lien, or other lien or encumbrance securing the payment of money or performance of an obligation.
VII-e. "Primarily to protect a mortgage interest or security interest" means that the holder's indicia of ownership are held primarily for the purpose of securing the payment or performance of the loan or other obligation.
VIII. "Life expectancy" means the time period within which a failure is not expected to occur as determined by the department.
IX. [Repealed.]
X. "New facility" means a facility the construction or installation of which begins on or after September 17, 1985, including, but not limited to, facilities which replace existing facilities, facilities which are moved from one location to another, and facilities which are substantially modified after September 17, 1985.
XI. "Nonresidential," when referring to a facility, means a facility which serves any commercial, industrial, institutional, municipal, public, or other building, including, but not limited to, service stations, hotels and motels, hospitals, nursing homes, and correctional institutions, but not including residential buildings.
XII. "Oil" means "oil" as defined in RSA 146-A:2.
XIII. "Operator" means the person who has responsibility for the care, custody, and control of the daily operation of a facility.
XIII-a. " Class A operator " means the individual or individuals designated by the owner to have primary statutory and regulatory responsibility for the operation and maintenance of the facility. The "class A operator" may hold more than one class of operator position.
XIII-b. " Class B operator " means the individual or individuals designated by the owner to implement applicable regulatory requirements and implement the daily aspects of the operation, maintenance, and recordkeeping for the facility. The "class B operator" may hold more than one class of operator position.
XIII-c. " Class C operator " means the individual or individuals designated by the owner to have primary responsibility for responding to alarms, emergencies presented by spills or releases, and other problems associated with the operation of the facility. The "class C operator" may hold more than one class of operator position.
XIII-d. " Approved training program " means an operator training program meeting the requirements of RSA 146-C:18.
XIV. "Owner" means the person in possession of or having legal ownership of a facility. In addition, for facilities no longer in use, "owner" includes the person having had legal ownership of such facility immediately prior to discontinuance of its use.
XIV-a. "Person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state and agencies thereof, municipality, commission, political subdivision of a state, interstate body, consortium, joint venture, commercial entity, the United States government and agencies thereof, and any other legal entity.
XIV-b. "Red-tagged storage tank or facility" means one or more oil storage tanks at a facility identified by means of a department-issued identification tag as being non-compliant with department rules issued under RSA 146-C:9, VI for spill prevention, overfill protection, release detection, leak monitoring, or corrosion protection.
XV. "Residential building" means any house, apartment, trailer, manufactured housing, or other structure occupied by individuals as a domicile.
XVI. "Substantial modification" means the construction or installation of any addition to a facility or any restoration or renovation of a facility which: increases or decreases the on-site storage capacity of the facility; significantly alters the physical configuration of the facility; or impairs or improves the physical integrity of the facility or its monitoring systems. On-site abandonment is specifically excluded as a "substantial modification" of a facility.
XVII. " Surface water " means perennial and seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, watercourses, and other bodies of water, natural or artificial.
XVII-a. "Tax lien" means a tax lien arising under RSA 80:19, the rights acquired by the grantee in a tax sale pursuant to RSA 80:20-RSA 80:42-a, and a tax lien acquired or transferred pursuant to RSA 80:58-RSA 80:86.
XVIII. "Underground storage facility" means a facility or facility component that is 10 percent or more below the surface of the ground and is not fully visible for inspection.

Source. 1986, 182:1. 1988, 249:1-3. 1990, 208:1-3, 14. 1991, 92:22-29. 1993, 323:6, 7. 1994, 199:7-9. 1995, 216:2. 1996, 228:26, 27, 106. 2000, 76:2, eff. June 20, 2000. 2007, 376:1, eff. July 1, 2007. 2010, 102:1, eff. May 26, 2010. 2016, 23:4, eff. Apr. 25, 2016.

Section 146-C:2

    146-C:2 Discharges Prohibited. – No owner or operator or other person responsible for the operation of a facility shall discharge or dispose of any oil or hazardous substance as defined in this chapter from any facility into or onto any land, groundwater, or surface water of the state.

Source. 1986, 182:1. 1988, 249:4. 1990, 208:4. 1991, 92:30, eff. May 13, 1991.

Section 146-C:3

    146-C:3 Registration of Underground Storage Facilities. –
I. The owner of each existing underground storage facility shall register the facility with the department on forms provided by the department and shall provide the following information:
(a) Facility name, location, and mailing address.
(b) Owner's name, mailing address, and telephone number.
(c) Contact person for this facility.
(d) Tank information: the size, age, type of tank material, location (on-site), and product stored.
(e) Demonstration of financial responsibility pursuant to rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial assistance under RSA 146-D shall satisfy the requirement of demonstration of financial responsibility under this subparagraph.
II. The owner of each existing underground storage facility shall register the facility with the department on forms provided by the department, and shall provide the following information to the extent that it may reasonably be available to the owner:
(a) Results of previous tank testings conducted in accordance with department rules, including documentation of test results.
(b) All previous owners and lessees with names and current addresses.
(c) A detailed description of the facility; the size of tanks (physical dimensions), number of fill boxes, number and type of fittings attached to tanks, complete description of underground piping system, type of cathodic protection, date each tank was manufactured, installed, relined, and inspected, and tank manufacturer, and the date and results of the latest tightness test of all underground tanks.
(d) The estimated life expectancy of all inground tanks and appurtenances.
(e) Description and date of past discharges or disposal, remedial actions, ground and surface water monitoring results, and closure plans.
(f) Detailed site plan and layout.
(g) Existing groundwater protection monitoring programs, if any.
III. The owner of a registered underground storage facility shall report any changes in the information provided under paragraph I or II within 10 days of the change.
IV. The registration required under this section shall be maintained for the life of the facility. A registration need not be maintained if the department has received written notice that the registered underground storage facility has been closed by approved procedures according to rules adopted pursuant to RSA 146-C:9, II(i). Any notice of closure shall include the date of such closure.
V. The department shall forward information compiled under this section to the federal Environmental Protection Agency pursuant to 42 U.S.C. 6991a(c).

Source. 1986, 182:1. 1988, 249:5, 6. 1990, 208:5, 6. 1991, 92:31. 1996, 228:106, eff. July 1, 1996.

Section 146-C:4

    146-C:4 Underground Storage Facility Permit Required. –
I. No person shall own or operate an underground storage facility in this state without a permit issued by the department. The permit to operate may be revoked in accordance with RSA 541-A:30 for just cause, including, but not limited to, the operation or ownership of an underground storage facility in violation of the department's rules. The revocation shall not take effect until the owner or operator has had an opportunity to be heard by the council, provided such request is made within 20 days of the issuance of the department's decision to revoke the permit. Appeal of a decision revoking a permit to operate shall be governed by RSA 21-O:14. Any appeal brought pursuant to RSA 541 shall not stay a decision by the waste management council which affirms the department's revocation of a permit.
II. The department shall issue or deny a permit to all facilities registered under RSA 146-C:3 within 90 days of the receipt of the complete registration information. A permit issued under this section shall be displayed on the premises of the underground storage facility at all times.
III. [Repealed.]

Source. 1986, 182:1. 1990, 3:73. 1991, 92:32. 1996, 228:28, 106. 2003, 187:5, 6, I, eff. July 1, 2003. 2010, 55:1, eff. May 18, 2010. 2016, 23:2, eff. Apr. 25, 2016.

Section 146-C:5

    146-C:5 Records Required; Inspections. –
I. The operator of an underground storage facility shall keep and reconcile accurate stock inventory records for the purpose of detecting leaks. The records shall be maintained and made available for department inspection and copying for a period of not less than 3 years.
II. For the purpose of developing or assisting in the development of any rule, conducting any study or investigation, instituting any corrective or remedial measures, or enforcing the provisions of this chapter, any owner or operator of a facility subject to regulation under this chapter shall, upon request of any employee or authorized representative of the department, furnish information relating to such facility or its contents, conduct monitoring or testing, permit such employee or authorized representative at all reasonable times to have access to and to copy all records relating to such facility, and permit such employee or authorized representative to have access to the facility for corrective or remedial measures.
III. For the purpose of developing or assisting in the development of any rule, conducting any study or investigation, instituting corrective or remedial measures, or enforcing the provisions of this chapter, department employees or authorized representatives may, upon the presentation of appropriate credentials:
(a) Enter at reasonable times any site where a facility regulated under this chapter is located.
(b) Inspect and obtain samples from any person of any regulated substances in such facility.
(c) Conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water or groundwater.
(d) Institute corrective or remedial measures.
IV. Information obtained by the department under this chapter which, in the judgment of the federal Environmental Protection Agency or the department, constitutes a trade secret shall not be disclosed to the public without notice to the owner of the trade secret and an opportunity for hearing. The department may provide information relating to trade secrets to the Environmental Protection Agency, provided that the Environmental Protection Agency guarantees the same degree of confidentiality as does the department.

Source. 1986, 182:1. 1988, 249:7, 8. 1991, 92:33-35. 1996, 228:106, eff. July 1, 1996.

Section 146-C:6

    146-C:6 Transfer of Ownership. – Prior to the transfer of ownership of an underground storage facility, the transferor shall notify the transferee of the transferor's compliance with the rules of the department under this chapter. When a transfer of ownership takes place, the new owner shall notify the department of the transfer and shall assume the permit issued to the previous owner.

Source. 1986, 182:1. 1991, 92:36. 1996, 228:106, eff. July 1, 1996.

Section 146-C:6-a

    146-C:6-a Exemption. – The provisions of RSA 146-C:3, 4, 5, I and 6 shall not apply to facilities no longer in use on January 1, 1974. The provisions of RSA 146-C:4, 5, I and 6 shall not apply to facilities taken out of use on or after January 1, 1974, and closed according to rules adopted under RSA 146-C:9, II(i).

Source. 1988, 249:9, eff. June 29, 1988.

Section 146-C:7

    146-C:7 New Facilities. –
I. Prior to commencing construction or installation of a new facility or substantial modification of an existing facility, an owner shall submit plans and specifications to the department and obtain written approval of those plans. Such plans shall be approved by an engineer licensed to practice in the state of New Hampshire on forms provided by the department. Within 90 days of submission of completed plans, the department shall send the owner written notice of approval or disapproval. Failure to send a notice shall be deemed to be approval of the plans.
I-a. Any person, except state and local governments, including counties, and school districts, submitting plans and specifications for a new facility shall pay to the department a fee of $100. Such fee shall be for reviewing such plans and specifications and for making inspections during installation. The fees shall be deposited with the state treasurer as unrestricted revenues.
II. An owner shall not cause or allow any construction or other activity which is not in accordance with the approved plans and all terms and conditions of the department's approval of those plans.
III. An owner shall demonstrate financial responsibility pursuant to rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial assistance under RSA 146-D shall satisfy the requirement of demonstration of financial responsibility under this paragraph.

Source. 1986, 182:1. 1988, 249:10. 1990, 3:74. 1991, 92:37. 1996, 228:106, eff. July 1, 1996.

Section 146-C:8

    146-C:8 Prohibition Against Reusing Tanks. – Tanks which are removed and do not meet the standards for new tanks shall not be reinstalled for the purpose of oil or hazardous substance storage. If a tank meets the standards, it may be reinstalled for oil or hazardous substance storage if after thorough cleaning and inspection, internally and externally, it is found to be structurally sound and free of pinholes, cracks, structural damage, or excessive corrosion. Such tanks shall be reinstalled in accordance with requirements of this chapter. A tank once used for oil or hazardous substance shall not be reused for a food product. If a tank is to be disposed of as junk, it must be retested for oil or hazardous substance vapors, rendered vapor free if necessary, and punched with holes to make it unfit for further use.

Source. 1986, 182:1. 1990, 208:7, eff. June 26, 1990.

Section 146-C:9

    146-C:9 Rulemaking. –
The commissioner shall adopt rules, under RSA 541-A, relative to:
I. Procedures, forms, and information required for registration of underground storage facilities, as authorized by RSA 146-C:3.
II. Procedures, forms, and criteria for issuing and renewing permits, as authorized by RSA 146-C:4. Criteria for permits shall include, but not be limited to:
(a) Minimum standards for repairing an underground steel tank.
(b) Tank replacement schedules.
(c) Tank testing schedules.
(d) Minimum standards for new underground tanks.
(e) Standards for fiberglass, fiberglass clad, and steel tanks.
(f) Standards for leak monitoring at underground storage facilities.
(g) Minimum standards for secondary containment for underground storage facilities.
(h) Minimum standards for piping systems at underground storage facilities.
(i) Procedures for the temporary and permanent closure of underground storage facilities.
(j) Technical and procedural alternatives and exemptions.
III. Requirements for recordkeeping, as authorized by RSA 146-C:5, I.
IV. Procedures for conducting inspections or investigations, as authorized by RSA 146-C:5, II.
V. Procedures, forms, and criteria for approving plans for new underground storage facility construction and installation, as authorized by RSA 146-C:7.
VI. Criteria for determining what constitutes a facility under this chapter including, but not limited to, tank size and capacity.
VI-a. Criteria for determining whether any material is a hazardous substance as defined in this chapter and procedures for such designation.
VII. Criteria for demonstrating financial responsibility for ownership and operation of underground storage facilities.
VIII. Acceptance and distribution of funds from the leaking underground storage tank trust fund established pursuant to 26 U.S.C. section 9508.
IX. [Repealed.]
X. Procedures and criteria for mitigation and prevention of damage due to a discharge from an underground storage facility.
XI. Procedures and criteria for responding to and reporting a discharge from an underground storage facility.
XII. Procedures for conducting tank testing, including qualifications of persons conducting tank testing.
XIII. The exemptions and liability limitations for holders and fiduciaries.

Source. 1986, 182:1. 1988, 249:11. 1990, 3:75; 208:8. 1991, 92:38, 39. 1993, 323:8. 1996, 228:110. 2003, 187:6, II, eff. July 1, 2003.

Section 146-C:9-a

    146-C:9-a Orders; Injunctions. –
I. The department is authorized to issue an administrative order directing any owner or operator or any other person who is strictly liable to cease any activity violating this chapter, to take action necessary to comply with this chapter, and to institute corrective and remedial measures, which shall include the following:
(a) Providing an interim water supply and establishing a permanent alternative water supply system to mitigate damage to the soil, groundwater or surface water.
(b) Removal and abatement of contamination resulting from a discharge from an underground storage facility.
(c) Reimbursement to the state for all costs incurred by the state in responding to a discharge of oil or a hazardous substance from a leaking underground storage facility.
II. Notwithstanding any other provision of this chapter, the department, upon receipt of information that the storage, transmission or dispensing of oil or a hazardous substance at a facility subject to this chapter may present an imminent and substantial hazard to human health or to the environment, may take action as it determines necessary to protect human health or the environment. The action the department may take includes, but is not limited to:
(a) Issuing an order directing the facility owner or operator or any person who is strictly liable under RSA 146-C:11 to take necessary steps to eliminate the hazard. The department may order the permanent or temporary cessation of operations at a facility. Orders of the department issued under this section shall be effective immediately. Any person to whom an order is directed shall immediately comply, but may appeal the order in accordance with paragraph III of this section.
(b) Requesting the attorney general to bring an action for injunctive relief, including a mandatory injunction.
III. Appeal of an order issued under this section shall be to the waste management council established in RSA 21-O:9 and in accordance with RSA 21-O:14.

Source. 1988, 249:12. 1990, 208:9. 1991, 92:40, 41. 1996, 228:106, eff. July 1, 1996. 2016, 23:3, eff. Apr. 25, 2016.

Section 146-C:10

    146-C:10 Penalty. –
I. Any person who owns or operates an underground storage facility without a permit as required by this chapter, who fails to comply with a condition of that permit or of an order issued under RSA 146-C:9-a, or who violates any provision of this chapter or the rules adopted under this chapter relative to underground storage facilities shall be subject to a civil penalty of not more than $10,000 for each violation. Each day of a continuing violation shall count as a separate violation. Such a violation may also be enjoined by the superior court upon application of the attorney general.
II. All moneys collected under this section which pertain to the discharge of oil shall be paid into the oil pollution control fund established under RSA 146-A:11-a. All moneys collected under this section which pertain to discharge of a hazardous substance shall be paid to the hazardous waste cleanup fund established under RSA 147-B:3.

Source. 1986, 182:1. 1987, 377:9. 1988, 249:13. 1989, 230:12. 1991, 92:42, eff. May 13, 1991. 2007, 376:3. eff. July 1, 2007.

Section 146-C:10-a

    146-C:10-a Administrative Fines. –
The commissioner of the department of environmental services, after notice and hearing pursuant to RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person who violates any provision of this chapter including any rule adopted under the provisions of this chapter. Rehearings and appeals from a decision of the commissioner under this section shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties under this chapter. The proceeds of administrative fines levied pursuant to this section shall be deposited by the commissioner in the oil pollution control fund established under RSA 146-A. The commissioner shall adopt rules, under RSA 541-A, relative to:
I. A schedule of administrative fines which may be imposed under this section for violations of this chapter as provided above; and
II. Procedures for notice and hearing prior to the imposition of an administrative fine.

Source. 1989, 230:8. 1995, 217:3, eff. Jan. 1, 1996.

Section 146-C:11

    146-C:11 Liability for Cleanup Costs; Municipal Regulations. –
I. Any person who, without regard to fault, directly or indirectly causes or suffers the discharge or disposal of oil or a hazardous substance into or onto any surface water or groundwater of this state, or in a land area where it has seeped or may or will ultimately seep into any surface water or groundwater of the state in violation of this chapter, or rules adopted under this chapter, shall be strictly liable for costs directly or indirectly resulting from the violation relating to:
(a) Containment of the discharged oil;
(b) Cleanup and restoration of the site and surrounding environment, and corrective or remedial measures as defined under RSA 146-A:11-a, III(a) and (b); and
(c) Removal of the oil.
I-a. The owner or operator of a facility shall immediately inform the department of any discharge or disposal in violation of this chapter. Such person shall take immediate action to mitigate damages from such discharge consistent with any applicable rules of the department. If the owner is not the operator of the facility, the operator shall immediately inform the owner of any discharge or disposal in violation of this chapter.
II. Nothing in this chapter shall be construed to prevent the party strictly liable from instituting a legal action against any party responsible for causing the spillage for costs incurred by the strictly liable party in complying with this chapter.
III. Nothing in this chapter shall be construed to pre-empt local zoning or other regulations, properly enacted under other statutes, which reasonably regulate the location of underground storage facilities.
IV. The department shall immediately notify the governing body of a municipality of any leaking underground storage tanks either within the municipality or near the local water supply.
V. [Repealed.]
VI. There shall be no implied cause of action for third party damages against any person under this section to the extent that the person's liability under this section is based solely on the person's ownership of a facility.

Source. 1986, 182:1. 1987, 377:4, 6. 1988, 249:14, 15; 271:9, VII. 1990, 208:10. 1991, 92:43. 1996, 228:106, eff. July 1, 1996; 266:7, eff. June 10, 1996.

Section 146-C:11-a

    146-C:11-a Limited Liability for Holders. –
I. A holder who has not assumed ownership of a facility or facility site by the act of taking title by foreclosure or by other similar means and who has not assumed responsibility for the care, custody or control of a facility or facility site shall not be considered an owner or operator under this chapter and shall not be liable under RSA 146-C:11.
II. (a) A holder who has assumed ownership of a facility or facility site by the mere act of taking title by foreclosure or other similar means or who has assumed responsibility for the care, custody or control of a facility or facility site shall be liable under RSA 146-C:11 unless the holder fulfills the following conditions in which case its liability shall be limited in accordance with subparagraph (b):
(1) The holder notifies the department of the facility if the holder knows or has reason to know of its existence and the facility is not registered;
(2) The holder reports to the department any known or suspected discharge or disposal of oil or hazardous substance from the facility;
(3) The holder assesses the facility's compliance with department of environmental services rules adopted under the authority of RSA 146-C and provides the department with the results of the assessment;
(4) The holder undertakes emergency response measures to stop an ongoing discharge or disposal of oil or hazardous substance, prevent further disposal, and address any imminent health hazard created by the disposal;
(5) The holder secures the facility or site as necessary to prevent exposure to oil or hazardous substances by fencing or otherwise limiting access;
(6) The holder conducts all actions required under this subparagraph and all other cleanup actions or corrective measures, including those voluntarily assumed, in accordance with the department of environmental service's rules; and
(7) The holder provides the department, its employees and authorized representatives with access to the facility or site for inspection, testing, containment, removal and cleanup activity and any other purposes authorized under this chapter.
(b) A holder who has complied with the conditions of subparagraph (a) shall not be considered an owner or operator under this chapter and shall not be liable under RSA 146-C:11 unless such holder or its employees cause any disposal of oil or hazardous substance, in which case the holder shall be liable for the lesser of:
(1) Actual damages caused by the holder or its employees;
(2) The value of the secured property as determined by a method acceptable to both the state and the holder, until otherwise specified by rules of the department of environmental services; or
(3) The amount of the outstanding indebtedness secured by the facility or site.
III. A holder that assumes primary responsibility for the business operations of a facility or facility site shall be deemed an operator under this chapter. Such holder shall not be strictly liable under RSA 146-C:11 for discharges or disposals commencing before the holder first conducts or manages the business operations of the facility if the holder has fulfilled the conditions of subparagraph II(a).
IV. Nothing in this section shall preclude or limit claims under RSA 146-C:11 against non-employee agents or independent contractors retained by a holder.
V. Nothing in this section shall preclude or limit claims for costs under RSA 146-C:11 against a holder whose negligent acts or omissions or intentional misconduct has caused the discharge or disposal of oil or hazardous substances. A holder as described in paragraph I or a holder who fulfills the conditions of subparagraph II(a) shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as such holder has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.

Source. 1993, 323:9. 1996, 228:106, eff. July 1, 1996.

Section 146-C:11-b

    146-C:11-b Limited Liability for Fiduciaries. –
I. A fiduciary shall not be considered an owner or operator under this chapter in its individual capacity and shall not be liable in its individual capacity under RSA 146-C:11.
II. Nothing in this section shall preclude claims under RSA 146-C:11 against:
(a) A fiduciary in its representative capacity;
(b) The assets of the estate or trust administered by a fiduciary; or
(c) Non-employee agents or independent contractors retained by a fiduciary.
III. Nothing in this section shall preclude claims to recover costs under RSA 146-C:11 against fiduciaries in their individual capacity based on negligence or intentional misconduct. Fiduciaries shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as the fiduciary has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.

Source. 1993, 323:9, eff. Aug. 22, 1993.

Section 146-C:11-c

    146-C:11-c Duty to Report. – Nothing in RSA 146-C:11-a or 146-C:11-b shall be construed to relieve a holder or fiduciary from any legal duty requiring a report, notification or disclosure of a discharge or disposal of oil or hazardous substance otherwise established under New Hampshire law.

Source. 1993, 323:9, eff. Aug. 22, 1993.

Section 146-C:12

    146-C:12 Federal Assistance and Private Funds. –
I. To implement this chapter, the commissioner is authorized on behalf of the state, with the approval of the governor and council, to apply for and accept any federal assistance which may become available for the purpose of this chapter, whether in the form of loan or grant or otherwise, to accept the provision of any federal legislation for such assistance, to enter into, act, and implement contracts in connection with such assistance, or to act as agent for the federal government in connection with such assistance. The commissioner shall accept and expend funds from the leaking underground storage tank trust fund established by 26 U.S.C. section 9508 in accordance with applicable federal law, the regulations adopted under such law, and the contract or contracts providing for federal assistance, notwithstanding any contrary provision of state law. The commissioner may also utilize any private funds which may be made available for the purposes of this chapter.
II. Cost recovered monies originally expended from the federal leaking underground storage tank trust fund shall be deposited into the oil pollution control fund, established in RSA 146-A:11-a and accounted for separately.
III. [Repealed.]

Source. 1986, 182:1. 1988, 249:16. 1993, 156:1. 1996, 228:106, 110, eff. July 1, 1996. 2007, 138:1, eff. Aug. 17, 2007. 2015, 142:10, 15, VII, eff. July 1, 2015.

Section 146-C:13

    146-C:13 Penalty; Persons Strictly Liable. – Any person who is found to be strictly liable for a discharge or spillage of oil, and who willfully fails to comply with a department order requiring investigation, containment, cleanup, removal, remedial measures, or corrective measures, shall be liable to the state in double the amount of cost recoverable funds expended by the state in undertaking investigative, remedial, or corrective action at the site.

Source. 1991, 92:44. 1996, 228:106, eff. July 1, 1996.

Section 146-C:14

    146-C:14 Delivery Prohibition. –
I. No person shall deliver or cause the delivery of oil to a non-compliant storage tank or facility which has been red-tagged.
II. No owner or operator of a facility may deposit or allow the deposit of oil into an underground storage tank or facility that has a red tag affixed to the tank or facility's fill pipe.
III. No person may deposit oil into an underground storage tank or facility that has a red tag affixed to the fill pipe.
IV. No person shall deface, alter, or otherwise tamper with a red tag so that the information contained is not legible.

Source. 2007, 376:2, eff. July 1, 2007.

Section 146-C:15

    146-C:15 Non-Compliant Storage Tanks or Facilities; Red-Tagging Procedure. –
The department shall apply the following procedure in determining whether to red-tag a storage tank or facility:
I. The department shall perform an on-site inspection to determine whether a storage tank or facility is non-compliant with department rules for spill prevention, overfill protection, release detection, leak monitoring, or corrosion protection.
II. Upon determining non-compliant status, the department shall provide written notification to the facility owner and facility operator on the nature of the operational deficiencies, the applicable regulatory requirements, options available for correcting the deficiencies, and the deadline for completion of the work.
III. Upon failure of a facility owner or operator to correct such operational deficiencies to the satisfaction of the department by the established deadline, the department shall issue a written notice of "Intent to Red-Tag" to the facility owner and facility operator, and shall provide notification to all oil delivery companies that have requested to receive such notifications. The notice shall include the deadline after which date department personnel will red-tag the non-compliant storage tank or facility. Before affixing a red tag to the fill pipe of an underground storage tank or facility, the agency shall document the level of stored product in the tank or facility.
IV. The department shall publish a current list of all red-tagged storage tanks and facilities in the state, and shall provide notification of list changes to all oil delivery companies that have requested to receive such notification. No person shall be liable for delivery of oil to a non-compliant storage tank or facility that is not included on the department list of red-tagged storage tanks or facilities.

Source. 2007, 376:2, eff. July 1, 2007.

Section 146-C:16

    146-C:16 Appeals. –
I. A facility owner may request, in writing, that the department rescind the delivery prohibition imposed under RSA 146-C:14. The department, shall approve a request to rescind the delivery prohibition, upon determining the following:
(a) The facility owner or operator has corrected the operational deficiencies identified during the inspection conducted under RSA 146-C:15, I;
(b) Fines and penalties assessed by the department against the facility owner or operator, if any, have been paid; and
(c) The department has re-inspected the facility and determined the storage tank or facility is in compliance, or an owner or operator has provided satisfactory documentation that operational deficiencies were corrected. Upon notification by the owner or operator documenting to the satisfaction of the department that the deficiencies were corrected:
(1) The department may provide written notification to the owner or operator to remove the red tag.
(2) The department shall inspect the underground storage tank or facility within 5 business days of notification to determine whether the tank or facility is now in compliance with department rules, regardless of whether it has authorized removal of the red tag by the owner or operator. If, upon inspection, the department determines that the system is in compliance and the department has not already authorized the removal of the red tag, the department shall immediately remove the red tag.
(3) Upon removal of the red tag, the department shall document the level of stored product in the tank or facility. If the red tag was removed by the owner or operator as authorized by the department, the owner or operator shall document the level of stored product in the tank or facility at the time of red tag removal. The removed red tag shall be sent back to the department with documentation of the level of product in the tank or facility at the time of removal. The red-tagged documentation shall be returned to the department within 5 days of the removal of the red tag, or sooner if the department requests it.
II. Nothing in this section shall affect any authority of the department or the attorney general to enforce state law relative to oil discharges or storage tank compliance, or to seek injunctive relief, cost recovery, penalties, and any other sanctions for non-compliance with applicable requirements.
III. Any appeal of department action under this section shall not stay or suspend the department's action.

Source. 2007, 376:2, eff. July 1, 2007. 2010, 55:2, eff. May 18, 2010.

Section 146-C:17

    146-C:17 Operator Training Required. –
I. Effective August 8, 2012, no person shall operate an underground storage facility without designated class A, B, and C operators who have been trained and certified in accordance with an approved training program.
II. (a) By August 8, 2012, owners of then-existing facilities shall submit to the department for each underground storage facility owned in the state a statement signed by both the owner and the designated operators in a format approved by the department identifying the designated class A and B operators, the name of the approved training program by which they are trained, the date that they were certified by the approved training program, and the expiration date regarding their certification.
(b) For facilities that begin operation after August 8, 2012, the information in subparagraph (a) shall be submitted prior to beginning operation.
III. Effective August 8, 2012, owners shall post at each underground storage facility operator response guidelines meeting the requirements of RSA 146-C:19, I.
IV. Effective August 8, 2012, owners shall post at each underground storage facility, and revise when changes occur, a listing of class C operators assigned to that facility that includes the latest date of training, the expiration date regarding the training, and an identification of the approved training program or the name of the certified class A or B operator that trained each class C operator.
V. After August 8, 2012, owners shall revise and resubmit to the department a signed statement that includes the information required in paragraph II whenever there is a change in designated class A or B operators or a change of approved training programs, or when a designated operator has been retrained as ordered by the department pursuant to RSA 146-C:21, within 30 days of the change for each affected underground storage facility.
VI. After August 8, 2012, newly designated class A and B operators shall be trained in accordance with an approved training program within 30 days of being designated. Newly designated class C operators shall be trained in accordance with an approved training program or by a certified class A or B operator before assuming the responsibilities of the class C operator.
VII. Class A, B, and C operators who have been trained and certified by an approved operator training program that has since had its approval revoked pursuant to RSA 146-C:20 shall remain trained and certified unless they are directed by the department to retrain pursuant to RSA 146-C:21 or their certification expires pursuant to the previously approved training program curriculum.

Source. 2010, 102:2, eff. May 26, 2010.

Section 146-C:18

    146-C:18 Operator Training Program Requirements. –
An operator training program may be provided by the department, approved by the department pursuant to paragraph I or paragraph III, or deemed approved pursuant to paragraph II, to meet the requirements of this section. The department may charge a fee to cover expenses for operator training that are not paid by federal grants.
I. An operator training program shall be approved in writing by the department. The department shall approve a program if after submittal of the training curriculum and instructor's qualification to the department for review, the department finds that it meets the following minimum requirements:
(a) Class A operator training shall include:
(1) Familiarization with applicable state statutes and rules as they specifically apply to facility registration and permitting, financial responsibility documentation requirements, spill prevention, overfill prevention, release detection, corrosion protection, emergency response, product compatibility, notification requirements, release and suspected release reporting, temporary and permanent closure requirements, and operator training.
(2) Certification that the operator has passed an appropriately administered and evaluated test demonstrating such knowledge.
(3) After the initial training, at least biennial retraining.
(b) Class B operator training shall include:
(1) Familiarization with the implementation of applicable statutes and regulations.
(2) Familiarization with components of underground storage facilities, material of underground storage facility components, methods of underground storage facility release detection and release prevention, underground storage facility spill prevention, overfill prevention, release detection, corrosion protection, emergency response, product compatibility, reporting and recordkeeping requirements, and class C operator requirements.
(3) Familiarization with conducting and documenting monthly maintenance inspections pursuant to RSA 146-C:19 and yearly maintenance inspections as applicable.
(4) Certification that the operator has passed an appropriately administered and evaluated test demonstrating such knowledge.
(5) After the initial training, at least biennial retraining.
(c) Class C operator training shall include:
(1) Familiarization with taking the appropriate action pursuant to operator response guidelines in responding to emergencies and alarms.
(2) Familiarization with the facility layout.
(3) Familiarization with reading alarm enunciation panels.
(4) Certification of understanding signed by the operator and trainer.
(5) After the initial training, at least biennial retraining.
II. The following operator training programs shall be deemed approved by the department:
(a) For class A operator training, current certification as an underground storage facility operator by the International Code Council.
(b) For class B operator training, current certification as an underground storage facility system installer or retrofitter by the International Code Council.
(c) For class C operator training, training to take appropriate action pursuant to the posted operator response guidelines in responding to emergencies and alarms, a physical tour of the facility, and training in reading the alarm enunciation panel by the designated trained class A or B operator at the facility; provided that, after the initial training, there is at least biennial retraining or refresher training.
III. The department may approve operator training programs conducted or approved by other states as meeting New Hampshire requirements.
IV. Nothing in this section shall prohibit or prevent a class A, B, or C operator from training additional facility employees to assist with the class C operator's responsibilities for responding to alarms, emergencies presented by spills or releases, and other problems associated with the operation of the facility.

Source. 2010, 102:2, eff. May 26, 2010.

Section 146-C:19

    146-C:19 Additional Operator Requirements. –
I. Written operator response guidelines shall include spill reporting procedures, contact phone numbers, malfunctioning equipment lock-out/tag-out and notification procedures, and initial mitigation protocol for emergencies.
II. Monthly visual inspections meeting the following minimum requirements shall be conducted at all underground storage facilities:
(a) Inspections shall be conducted by or under the direction of the class A or B operator.
(b) The results of each inspection shall be recorded in a monthly inspection report. The records shall be maintained and made available for department inspection and copying for a period of not less than 3 years.
(c) The following items shall be inspected and shall be reported on the inspection report as no defect, defect, and how any defect was resolved:
(1) Inspect all vent risers for visible damage and repair as necessary.
(2) Inspect each pressure/vacuum vent cap and if the cap is missing or damaged, replace the cap.
(3) Inspect each spill bucket for the presence of oil, water, or debris; remove and dispose of any oil, water, or debris in accordance with all applicable federal, state, and local requirements; and repair each spill bucket as necessary.
(4) Inspect each coaxial fill adaptor cap, 2-point fill adaptor cap, and dry break adaptor cap for looseness, the presence of a gasket, and tightness of fit, and tighten, repair, or replace as necessary.
(5) Inspect each coaxial fill adaptor, 2-point fill adaptor, and dry break adaptor for tightness of fit, and tighten or replace as necessary.
(6) Inspect each dry break poppet valve for a continuous seal, that it depresses evenly across the valve seat, and that it reseats properly and if not, repair or replace as necessary.
(7) Inspect each motor fuel dispenser hose for tears, leaks, holes, kinks, crimps, or defects of any kind and replace as necessary.
(8) Inspect each motor fuel dispenser nozzle for leaks, obstruction of vapor recovery holes, or defects of any kind and replace as necessary.
(9) Inspect each motor fuel dispenser cabinet interior for leaking components and the presence of oil, water, or debris; remove and dispose of any oil, water, or debris in accordance with all applicable federal, state, and local requirements; and repair each component as necessary. If a motor fuel dispenser cabinet interior has a liquid-tight containment sump with continuous leak detection monitoring provided by either a dispenser sump sensor or the attached piping sump sensor, the motor fuel dispenser cabinet interior inspection may be conducted annually and the results reported in the associated monthly inspection report.
(10) Inspect each oil transfer and dispensing area for the presence of oil spills and report and remediate any spill in accordance with all applicable federal, state, and local requirements.
(11) Inspect each alarm enunciation panel for proper operation of product monitoring and leak detection systems and repair or replace system components as necessary.
(d) Deficiencies discovered during the visual inspection shall be repaired or otherwise resolved within 30 days.
III. The class B operator shall ensure that tanks, pumps, and appurtenances that will store or dispense oil are compatible with the oil or oil blends to be stored or dispensed.
IV. Delegation of the responsibilities of this section to designated operators shall not relieve the owner from liability for noncompliance with the requirements of this section.

Source. 2010, 102:2, eff. May 26, 2010.

Section 146-C:20

    146-C:20 Revocation of Operator Training Program Approval. –
I. If the department determines that an approved operator training program has proven insufficient to adequately train operators as evidenced by inadequately trained operators, significant operational compliance issues, or inability to document that training has been provided, then the department shall revoke the approval of the operator training program.
II. An operator training program may be re-approved if it is demonstrated that all operator training program defects have been corrected and if a revised curriculum and instructor's qualification is submitted to the department and meets the requirements of RSA 146-C:18.
III. An approved operator training program may withdraw as an approved operator training program by making such a request in writing to the department.

Source. 2010, 102:2, eff. May 26, 2010.

Section 146-C:21

    146-C:21 Repeating Operator Training. – If the department determines that a facility is not in significant operational compliance with the release prevention and release detection measures of applicable state rules and statutes, or other requirements of this chapter or the implementing rules, then the department shall direct that the responsible class A or B operator be retrained and recertified in accordance with an approved training program, within 30 days or within such other time as the department specifies.

Source. 2010, 102:2, eff. May 26, 2010.