TITLE X
PUBLIC HEALTH

Chapter 147-B
HAZARDOUS WASTE CLEANUP FUND

Section 147-B:1

    147-B:1 Findings and Purpose. –
I. The general court hereby finds that as a result of past hazardous waste dumping activities, the potential for spills of hazardous materials and the present lack of proper hazardous waste treatment, storage or disposal facilities within the state, the problem of managing movement of hazardous materials and hazardous waste in the state has become a matter of great concern.
II. The general court hereby declares that the purpose of RSA 147-B is to provide for the proper, adequate and safe cleanup of sites within New Hampshire where hazardous wastes or materials have been improperly discharged, disposed of or spilled. It is further the purpose of this chapter to support the regulatory and enforcement efforts associated with such cleanups, the transportation of hazardous wastes, and the proper permitting of hazardous waste facilities.
III. Nothing contained in this chapter is intended to duplicate the functions set forth in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Public Law 96-510.

Source. 1981, 413:3. 1990, 253:3. 1991, 226:4, eff. July 1, 1991.

Section 147-B:2

    147-B:2 Definitions. –
In this chapter, the following words shall have the following meanings, unless the context otherwise requires:
I. [Repealed.]
I-a. "Borrower" means the obligor of an obligation secured by a mortgage interest, mortgage lien, or security interest in a facility.
I-b. "Automotive oil" means any lubricating oil, which is reclaimable, classified for use in an internal combustion engine, transmission, gear box or differential for a motor vehicle, boat, off highway recreational vehicle, or commercial or household power equipment.
I-c. "Commissioner" means the commissioner of the department of environmental services.
I-d. "Department" means the department of environmental services.
II. "Disposal" means the discharge, deposit, incineration, injection, dumping, spilling, leaking or placing of any waste into or onto any land or water so that the waste or any constituent of the waste may enter the environment, be emitted into the air, or be discharged into any waters, including groundwaters.
III. "Facility" means any site, area or location where hazardous waste or hazardous materials are or have been treated, stored, generated, disposed of, or otherwise come to be located.
III-a. (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.
(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.
III-b. "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.
IV. "Fund" means the New Hampshire hazardous waste cleanup fund.
V. "Generation" means the act of producing hazardous waste.
VI. "Generator" means any person who owns or operates a facility where hazardous waste is generated.
VII. "Hazardous waste" means a solid, semi-solid, liquid or contained gaseous waste, or any combination of these wastes:
(a) Which, because of either quantity, concentration, or physical, chemical, or infectious characteristics may:
(1) Cause or contribute to an increase in mortality or an increase in irreversible or incapacitating reversible illness; or
(2) Pose a present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of or otherwise mismanaged.
(b) Or which has been identified as a hazardous waste by the department using the criteria established under RSA 147-A:3, I or as listed under RSA 147-A:3, II. Such wastes include, but are not limited to, those which are reactive, toxic, corrosive, ignitable, irritants, strong sensitizers or which generate pressure through decomposition, heat or other means. Such wastes do not include radioactive substances that are regulated by the Atomic Energy Act of 1954, as amended.
VIII. "Hazardous materials" means those substances or materials in such quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce, by all modes which may include, but are not limited to, explosives, radioactive materials, etiologic agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, and compressed gases which are listed by the Materials Transportation Bureau of the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as amended.
VIII-a. [Repealed.]
VIII-b. "Notice of lien" means an instrument signed on behalf of the commissioner, designating a particular facility or facilities and identifying the persons then deemed by the commissioner to be liable under this chapter with respect to each such facility and their mailing addresses, to the extent known to the commissioner, and declaring a lien upon the real and personal property of such persons for the payment of the amounts due or to become due from such persons to the state under this chapter; provided, however, that neither the failure to state any address nor the designation of an incorrect address shall invalidate such notice of lien; and provided further that successive notices of lien, naming the persons so deemed liable, may be issued. The notice of lien shall be in the following form: NOTICE OF LIEN
NOTICE is hereby given that the Department of Environmental Services claims a lien against the persons identified below pursuant to RSA 147-B:10-b in the amount claimed:
Name/Address
 
Location of Facility
 Amount
 
 
 
 
 
 
 

In accordance with RSA 147-B:10-b, this notice shall be recorded with __________ and shall constitute a lien against property of the person(s) identified above and shall have effect and priority in accordance with RSA 147-B:10-b upon recording of this notice of lien with the above referenced department.
Dated this __________ day of __________, 20 ___.
DEPARTMENT OF ENVIRONMENTAL SERVICES
By: __________
VIII-c, VIII-d. [Repealed.]
VIII-e. "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.
VIII-f. "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.
VIII-ff. "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.
VIII-g. "Participation in the management of a facility" means the actual participation by a holder in the management or operational affairs of the facility, including without limitation where a holder (i) exercises decision-making control over environmental compliance or (ii) exercises control at a level comparable to that of a manager of the enterprise with responsibility for day-to-day decision-making either with respect to environmental compliance or all or substantially all of the operational (as opposed to financial or administrative) aspects of the facility. The following types of activities, among others, shall not constitute participation in the management of a facility:
(a) Taking title to a facility by foreclosure, by accepting a deed to such facility in lieu of foreclosure or by other similar means, or the transfer or sale of such facility;
(b) Conducting, or requiring the borrower to conduct, an environmental assessment or audit of the facility;
(c) Withholding funds under an existing obligation or restructuring or renegotiating the terms of a borrower's obligations, including but not limited to, requiring the payment of interest, the extension of payment periods or the issuance of additional funds;
(d) Providing to the borrower financial advice;
(e) Requiring or advising the borrower to comply with federal, state or local laws, rules, regulations, orders or permits;
(f) Collecting rents, maintaining utility services and securing the facility from unauthorized entry; and
(g) Undertaking any cleanup action approved by the department.
VIII-h. "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. The indicia of ownership held after foreclosure continues to be maintained primarily as protection for a security interest provided that the holder undertakes to sell, re-lease property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of the property in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the facility, taking all facts and circumstances into consideration, and provided that the holder does not participate in management. A holder establishes that it is seeking to sell, re-lease or otherwise divest itself of the property following foreclosure and its equivalents by, within 5 months following foreclosure, listing the facility with a broker, dealer, or agent who deals with the type of property in question, or by advertising the facility as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the facility in question, or a newspaper of general circulation covering the area where the property is located. The holder is entitled to a presumption that it is holding indicia of ownership primarily to protect a mortgage interest or security interest but if the holder does not divest itself of the property within 3 years, the holder bears the burden of showing compliance with this paragraph.
VIII-i. "Qualifying holder" means a holder who does not participate in the management of the facility.
IX. "Person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state, municipality, commission, United States government or any agency thereof, political subdivision of the state, or any interstate body.
IX-a. "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.
X. "Storage" means the containment of hazardous wastes, either on a permanent basis or on a temporary basis or for a period of years, in such a manner as not to constitute disposal of the hazardous wastes.
X-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.
XI. "Transportation" means the movement of hazardous wastes from the point of generation to any intermediate points and, finally, to the point of ultimate storage or disposal.
XI-a. "Transporter" means any person who transports hazardous waste.
XI-b. [Repealed.]
XII. "Treatment" means any process, including neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize the waste or to render the waste not hazardous, safer for transport, amenable to recovery, amenable to storage or reduced in volume.
XIII. "Used oil" means any oil that has been refined from crude oil, or synthetic oil, which, through use or handling, has become unsuitable for its original purpose due to the presence of physical or chemical impurities or loss of original properties.

Source. 1981, 413:3. 1983, 227:4, 6, 20, I; 291:1, I. 1986, 119:2-5; 202:6, I(e), 29, VI. 1992, 178:1, 2; 263:1. 1993, 323:11-13. 1994, 199:16-19; 364:2, 3, 14, I, II. 1995, 216:3. 1996, 228:34, 35, 106, 107. 1999, 52:7, eff. July 20, 1999.

Section 147-B:3

    147-B:3 New Hampshire Hazardous Waste Cleanup Fund Established. –
I. There is hereby established the New Hampshire hazardous waste cleanup fund to be used for the purposes of this chapter.
II. This nonlapsing, revolving special fund is hereby continually appropriated to be expended by the department in accordance with RSA 147-B. All moneys not currently needed to meet the obligations of the department shall be deposited with the state treasurer who shall keep this money in a separate fund, designated the New Hampshire hazardous waste cleanup fund, notwithstanding RSA 6:12. The state treasurer shall invest the moneys deposited with him as provided by law. Interest received on investments made by the state treasurer shall also be credited to the fund.
III. [Repealed.]

Source. 1981, 413:3. 1983, 227:6. 1986, 158:21; 202:6, I(e). 1996, 228:107, eff. July 1, 1996.

Section 147-B:4

    147-B:4 Siting Program. –
I. The department shall allocate $ 60,000 annually from the fund for the development and implementation of a hazardous waste facility siting program. This program may include the establishment by the state of hazardous waste facility sites in the state to facilitate proper hazardous waste management.
II. Funds allocated to the siting program shall be accounted for separately and managed in accordance with rules adopted by the commissioner. The commissioner may expend moneys from the siting program fund with the approval of governor and council for the purposes of this section.
III. The department, with the assistance of the department of energy, shall administer the hazardous waste facility siting program established under paragraph I. The department and department of energy shall survey the state to identify potential sites within the state which conform to siting criteria adopted under RSA 147-A:3. Following identification of potential sites, the department shall notify the governing body of the town in which the potential site is located.
IV. [Repealed.]

Source. 1981, 413:3. 1983, 227:5. 1986, 120:1; 202:6, I(e). 1996, 228:107, 110. 2003, 319:9. 2004, 257:44, eff. July 1, 2004. 2007, 219:11, I, eff. July 1, 2007. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.

Section 147-B:5

    147-B:5 Certification by Governor. – The governor, upon the recommendation of the commissioner, may certify that circumstances exist which require use of the fund when the treatment, storage, transportation, or disposal of hazardous waste or hazardous materials may cause immediate or long-term danger to the environment or public health and welfare.

Source. 1981, 413:3. 1983, 227:5. 1986, 202:6, I(e). 1996, 228:105, eff. July 1, 1996.

Section 147-B:6

    147-B:6 Purpose and Use of Fund. –
I. The fund shall be used to provide for the adequate and safe containment and cleanup of sites within New Hampshire where hazardous wastes or hazardous materials have been stored or disposed of which threaten the environment or the public health and welfare.
I-a. The fund may be used for conducting department-approved household hazardous waste cleanup projects throughout the state. Expenditures from the fund for such projects shall be matched on a dollar-for-dollar basis by municipalities or by other local or regional entities in accordance with rules adopted by the department under RSA 147-B:7, III. It shall be a purpose of such assistance to enable local and regional entities to educate the public in the importance of the proper management of household wastes which have hazardous or toxic qualities. Programs which receive funding shall include in their proposal a significant public education component. To encourage such programs, the department shall prepare a suggested warrant article which local governmental entities may use to secure the local funding component.
I-b. Fees collected in accordance with RSA 147-A:4 and deposited into the hazardous waste cleanup fund shall be accounted for separately and used in processing hazardous waste facilities' permits and enforcing and implementing conditions of a permit.
I-c. [Repealed.]
I-d. Fees collected in accordance with RSA 147-B:12 and deposited in the hazardous waste cleanup fund shall be accounted for separately and used in the used oil collection program as provided in RSA 147-B:13.
I-e. Fees collected in accordance with RSA 147-F:14 and deposited into the hazardous waste cleanup fund shall be accounted separately and used in funding the operations and staff positions in RSA 147-F, the brownfields program.
I-f. Fees collected in accordance with RSA 147-A:5, III(b) and deposited in the hazardous waste cleanup fund shall be accounted for separately and used to process hazardous waste coordinator certification applications, provide technical training and assistance to coordinators, and hire personnel.
I-g. Fees collected pursuant to RSA 147-A:5, IV (c) and RSA 147-A:6-a shall be deposited in the hazardous waste cleanup fund established in RSA 147-B:3 and shall be accounted for separately and used to manage the hazardous waste generator self-certification program, provide technical training and assistance to hazardous waste generators, hire personnel, and pay administrative costs.
II. After the governor certifies that circumstances require the use of the fund, the department may enter into contracts, agreements, or consultative services and use the fund for the following purposes:
(a) Hiring of consultants and personnel;
(b) Purchase, lease or rental of necessary equipment; and
(c) Other necessary expenses directly associated with the containment and cleanup of hazardous wastes or hazardous materials.
III. The department shall submit all contracts to the governor and council for advance approval, except in emergency situations.
IV. The department may use up to $600,000 per year from the fund to pay for permitting, administrative and enforcement costs associated with the fund.
V. Notwithstanding any other provision of law, the interest and principal due on bonds and notes shall not be paid out of funds from the hazardous waste cleanup fund.
VI. The department may use the fund to support the pollution prevention program established under RSA 21-O:15 through RSA 21-O:22.

Source. 1981, 413:3. 1983, 137:11; 227:6. 1985, 346:1, 2, 5. 1986, 202:6, I(e). 1989, 222:1. 1990, 253:4, 5. 1991, 226:5, 6. 1992, 263:2, 3. 1994, 364:4. 1995, 308:127, VIII. 1996, 228:107; 241:7. 2002, 74:2; 87:4. 2003, 148:5, eff. July 1, 2003. 2022, 326:7, eff. July 8, 2022.

Section 147-B:7

    147-B:7 Rulemaking. –
I. The commissioner shall adopt rules, after public hearing and pursuant to RSA 541-A, relative to:
(a) Time, amount and manner of payment of hazardous waste cleanup fund fees;
(b) Required records to be kept by generators and by facility owners or operators of the type and quantity of hazardous waste generated and received;
(c) Certified reports required to be submitted with fee payments by generators and by facility owners and operators;
(d) Exemption from the generator fee for generators participating in hazardous waste recycling programs; and
(e) The exemptions, limitations of liability, and lien priority provisions for holders and fiduciaries, including qualifying holders.
II. The commissioner shall adopt rules, after public hearing and pursuant to RSA 541-A, relative to:
(a) Administration of funds allocated to the siting program under RSA 147-B:4, I; and
(b) Purposes for which funds in the siting program may be used, including, but not limited to:
(1) Obtaining independent investigations of proposed sites;
(2) Providing financial assistance to local officials, planning groups, or citizen groups for the study and development of sites;
(3) Obtaining the assistance of an impartial mediator for the voluntary settlement of disputes over the development of sites.
III. The commissioner shall adopt rules, after public hearing and pursuant to RSA 541-A, relative to:
(a) Administration of funds used for the household hazardous waste cleanup projects under RSA 147-B:6, I-a.
(b) Purposes for which funds for such projects may be used.
(c) Types of household hazardous waste projects that may be conducted using fund moneys.
(d) Criteria under which such projects shall be conducted, including, but not limited to, the financial, contractual, safety, and educational requirements for such projects.
IV. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to procedures and criteria for funding used oil collection centers as provided in RSA 147-B:13, and relative to the annual reports submitted by used oil transporters as provided in RSA 147-B:14.
V. [Repealed.]

Source. 1981, 413:3. 1983, 137:12, 13; 227:6. 1985, 346:3. 1986, 202:6, I(e). 1993, 323:14. 1994, 364:5. 1996, 8:7; 228:110. 2002, 74:4, I, eff. June 30, 2002.

Section 147-B:8

    147-B:8 Hazardous Waste Cleanup Fund Fees. –
I. Each hazardous waste generator that generates in a 3-month period 660 pounds or more of unrecycled hazardous waste shall pay a quarterly fee of $0.06 per pound or a minimum of $100, to the department.
I-a. [Repealed.]
II. In computing the amount of hazardous waste generated in a 3-month period, a generator may deduct from the amount of hazardous waste generated the amount of hazardous waste recycled, in a manner approved by the department.
III. A quarterly fee shall be assessed on each hazardous waste facility located in New Hampshire that receives hazardous waste from out-of-state for the purpose of treating, storing, or disposing of such waste. Said fee shall be based solely on hazardous waste received by the facility from out-of-state sources. The fee on such waste shall be no more than $.007 per kilogram ($.003 per pound). The facility's owner or operator shall make the appropriate quarterly fee payments to the department.
IV. The department shall deposit fees collected under this section into the cleanup fund.
V. Failure to pay fees within 60 days of the date due shall result in the assessment of interest at a rate established by the commissioner. The commissioner may waive all or any portion of interest for good cause. The department shall deposit interest collected under this section into the cleanup fund.

Source. 1981, 413:3. 1983, 137:14; 227:6. 1986, 202:6, I(e). 1990, 3:78. 1992, 178:3. 1994, 364:14, III. 1996, 228:107. 1999, 232:1, eff. Jan. 1, 2000. 2007, 219:4, 5, eff. July 1, 2007.

Section 147-B:9

    147-B:9 Exemptions. –
The following shall not be subject to the fees established in RSA 147-B:8:
I. Sludge from publicly owned treatment works located in the state, as defined in rules adopted by the commissioner;
II. Bottom boiler ash and flyash from incinerators which process solely municipal waste, as defined in rules adopted by the commissioner;
III. Hazardous wastes which are recycled and exempt from the fee under RSA 147-B:8, II; and
IV. Wastes resulting from the remediation of environmentally contaminated properties by persons who meet one of the following eligibility criteria:
(a) The person is not liable under RSA 147-B for any release or threatened release of a contaminant or contaminants at the property and is either:
(1) A prospective purchaser of environmentally contaminated property, or
(2) A person who holds a mortgage interest or other security interest in environmentally contaminated property, including a municipality with respect to property on which there are overdue real estate taxes due to the municipality.
(b) The person is a current owner of environmentally contaminated property, whose liability under RSA 147-B is based solely on the person's status as owner, who did not generate the hazardous waste which constitutes the contamination on the property, and who has not operated, managed, or controlled, either directly or indirectly, the hazardous waste facility on the property.
V. Soil that is a hazardous waste due to lead contamination resulting from the use of the area as a shooting range, provided that clean-up is initiated and completed by the owner in accordance with all applicable laws and department requirements.
VI. Household hazardous waste.

Source. 1981, 413:3. 1983, 227:6. 1986, 202:6, I(e). 1992, 178:4. 1994, 364:6. 1996, 228:110. 1997, 269:2. 2000, 170:1. 2003, 148:6, eff. July 1, 2003.

Section 147-B:10

    147-B:10 Strict Liability; Civil Action. –
I. Subject only to the defenses set forth in RSA 147-B:10-a and the exclusions and limitations set forth in RSA 147-B:10, IV and V, any person who:
(a) Owns or operates a facility;
(b) Owned or operated a facility at the time hazardous waste or hazardous materials were disposed there;
(c) By contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, to any facility of hazardous waste or hazardous materials owned, possessed or controlled by such person; or
(d) Accepts or accepted any hazardous waste or hazardous material for transport to disposal or treatment facilities or sites selected by such person,
shall be strictly liable for all costs incurred by the state in responding to a release or threatened release of hazardous waste or hazardous material at or from the facility as specified in paragraph II.
I-a. Government entities, including their employees, shall not be liable for the release of hazardous waste during the lawful transportation of locally collected household hazardous waste over the byways of the state, to regional hazardous waste collection centers or in-state or out-of-state disposal facilities in the absence of willful, wanton or reckless conduct.
II. Costs recoverable by the state under paragraph I shall include all costs relating to:
(a) Containment of the hazardous wastes or hazardous materials.
(b) Necessary cleanup and restoration of the site and the surrounding environment.
(c) Removal of the hazardous wastes or hazardous materials.
(d) Such actions as may be necessary to monitor, assess and evaluate the release or threat of release of a hazardous waste or hazardous material; or to mitigate damage to the public health or welfare that may otherwise result from a release or threat of release.
III. (a) The attorney general may institute an action before the superior court for the county in which the facility is located against any person liable pursuant to paragraph I of this section to recover all costs incurred by the state. Costs recovered under this section shall be deposited into the fund except that costs recovered to offset expenditures made from the drinking water and groundwater trust fund established in RSA 6-D:1 shall be deposited into the drinking water and groundwater trust fund.
(b) Notwithstanding the rights of the state under subparagraph (a) above, any person who has expended funds to remedy environmental damage may also bring an action in the superior court for the county in which the facility is located against any person who may be liable for such damage pursuant to paragraph I of this section. Such person's right to contribution shall be limited to expenditures which are incurred for the purposes described in paragraph II of this section and which are consistent with the laws and rules of the state of New Hampshire. A person's right to recovery under this section shall not be barred by the fact that the party bringing the action is itself liable to the state under this section.
IV. Notwithstanding paragraph I, the liability of a holder, when acting as a holder, shall be determined as follows:
(a) A qualifying holder shall not be liable to the state or any other person under paragraph I.
(b) A holder who is not a qualifying holder shall be liable under paragraph I; however, the liability of a holder who demonstrates that its acts or omissions have not caused the release of hazardous waste or materials at a facility shall be limited to the lesser of:
(1) 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
(2) The amount of the outstanding indebtedness secured by the facility.
(c) Nothing in this section shall preclude or limit claims under paragraph I against non-employee agents or independent contractors retained by a holder.
(d) Nothing in this section shall preclude or limit claims to recover costs under this section against a qualifying holder whose negligent acts or omissions or intentional misconduct has caused the release of hazardous waste or materials at a facility. A qualifying holder shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as the qualifying holder has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.
V. Notwithstanding paragraph I, the liability of a fiduciary, when acting as a fiduciary, shall be determined in accordance with the following:
(a) A fiduciary shall not be liable in its individual capacity to the state or any other person under paragraph I.
(b) Nothing in this section shall preclude claims under paragraph I against:
(1) A fiduciary in its representative capacity;
(2) The assets of the estate or trust administered by the fiduciary; or
(3) Non-employee agents or independent contractors retained by a fiduciary.
(c) Notwithstanding this section, nothing shall preclude claims to recover costs under this section against a fiduciary in its individual capacity whose negligent acts or omissions or intentional misconduct has caused the release of hazardous waste or materials at a facility. A fiduciary 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.
VI. Nothing in this section shall be construed to relieve a holder or fiduciary from any legal duty requiring a report, notification or disclosure of a release of hazardous waste or materials otherwise established under New Hampshire law.
VII. 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. 1981, 413:3. 1983, 227:6. 1986, 119:6; 202:6, I(e). 1988, 12:1. 1990, 253:6. 1993, 323:15, 16. 1996, 266:9, eff. June 10, 1996. 2006, 282:2, eff. Sept. 13, 2006. 2019, 346:293, eff. July 1, 2019.

Section 147-B:10-a

    147-B:10-a Defenses; Liability of Landowners Limited. –
I. There shall be no liability under RSA 147-B:10, I for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of hazardous wastes or hazardous materials, and the resulting damages were caused solely by:
(a) An act of God;
(b) An act of war; or
(c) An act or omission of a third party other than an employee, agent, or independent contractor of the defendant, if the defendant establishes by a preponderance of the evidence that he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and that he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.
II. Notwithstanding any other provision of law, an owner or former owner of property shall not be held strictly liable for the treatment or cleanup of hazardous waste or hazardous materials discovered on his property if:
(a) He did not, in any way, cause or materially contribute to the hazardous substance problem.
(b) He reported the existence of the hazardous substance to the appropriate authorities within a reasonable time of discovery.
(c) He can prove that he had no knowledge or reason to know of the hazardous substance problem prior to his purchase of the property. To establish that the defendant had no reason to know, as provided in this subparagraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability.
III. Notwithstanding any other provision of law, an owner or former owner of property shall not be held strictly liable for the treatment or cleanup of hazardous waste, hazardous material, oil as defined in RSA 146-A:2, III, or hazardous substance as defined in RSA 146-C:1, VII-a that are discovered on the property if:
(a) The owner did not, in any way, cause or materially contribute to the contamination of the property; and
(b) The contamination migrated onto the property from a source that, at the time of discovery of the contamination, was located on another property.

Source. 1986, 119:6. 1989, 355:1. 1996, 266:10, eff. Aug. 9, 1996.

Section 147-B:10-b

    147-B:10-b Lien. –
I. The department shall have a lien upon the business revenues and all real and personal property of any person subject to liability under RSA 147-B:10, I for all costs recoverable by the state pursuant to RSA 147-B:10, II.
II. In order for the lien created under this section to be valid and effective against the real property of a person liable under RSA 147-B:10, I, the department shall record the notice of lien in the registry of deeds for each county in which such person owns or holds an interest in real property. Upon its recording in a registry of deeds, the notice of lien shall be effective against all real property of the person located within such county. In order for the lien created by this section to be perfected and valid against the business revenues and personal property, tangible and intangible, of the person subject to liability under RSA 147-B:10, I, the department shall record the notice of lien with the office of the secretary of state in which financing statements are filed pursuant to RSA 382-A:9-501(a)(2). The department shall file separate notices of lien forms for each person subject to liability under RSA 147-B:10, I. There shall be no charge for filing a notice of lien. The fee for discharging a notice of lien shall be borne by the person identified in the notice of lien.
III. The priority of the lien created by this section shall be as follows:
(a) As to the real property on which the hazardous waste or hazardous material is located, the lien shall constitute a first priority lien against such real property prior to all encumbrances, whether of record or inchoate, when the notice of lien is recorded in the registry of deeds for the county in which such real property is located and the notice of lien identifies the record owner of such real property. This subparagraph shall not apply to real property in use as, or being constructed primarily for, residential purposes. Such residential real property shall be governed by subparagraph (c) of this paragraph.
(b) As to the business revenues generated from the facility on which hazardous waste or hazardous material is located and personal property located at the facility on which hazardous waste or hazardous material is located, the lien shall constitute a first priority lien against such business revenues or personal property, prior to all encumbrances, whether of record or inchoate, when the notice of lien is filed with the secretary of state and the notice of lien identifies the owner of such personal property.
(c) As to all other property, whether real, personal or business revenues, other than that which is described in subparagraph (a) or (b) of this paragraph, the notice of lien shall constitute a lien that is effective as of the date and time of recording or filing, without priority on antecedent encumbrances of record when the notice of lien is properly recorded in the appropriate registry of deeds or filed with the secretary of state.
(d) Notwithstanding the lien priorities created under subparagraphs (a)-(c), a holder who, either voluntarily or in conjunction with others (including the state and federal government), undertakes clean-up activities or expends funds on other response or remedial costs, shall have a lien of equal rank and priority with the lien created by paragraph I to the extent of moneys expended for remediation.
IV. The department shall also send a copy of the notice of lien to the person identified in the notice of lien at the address set forth in the notice of lien by certified mail, return receipt requested, postage prepaid.

Source. 1986, 119:6; 202:6, I(e). 1989, 60:1. 1993, 323:17, 18. 1996, 228:107. 2001, 102:27, eff. July 1, 2001.

Section 147-B:11

    147-B:11 Penalty; Fine. –
I. Any generator shall be guilty of a misdemeanor who:
(a) Does not pay the fee required in RSA 147-B:8; or
(b) Knowingly gives or causes to be given any false information in reports, records, or documents required by the department under RSA 147-B.
II. Each day of violation of RSA 147-B:11, I, shall constitute a separate offense. Notwithstanding RSA 651:2, each violation of RSA 147-B:11, I, shall be punishable by a fine not to exceed $100 a day.
III. Fines paid for violations of RSA 147-B:11, I, shall be deposited into the fund, notwithstanding RSA 618:2.

Source. 1981, 413:3. 1983, 227:6. 1986, 202:6, I(e). 1996, 228:107, eff. July 1, 1996.

Section 147-B:11-a

    147-B:11-a Annual Report. – The department shall submit an annual report by October 1 of each year to the governor and council, speaker of the house of representatives, and president of the senate, relative to the activities and finances of the hazardous waste cleanup fund.

Source. 2007, 219:12, eff. July 1, 2007.

Used Oil Collection

Section 147-B:12

    147-B:12 Automotive Oil Fee. –
I. A fee of $.02 per gallon of automotive oil shall be assessed at the time of import to this state. Persons licensed under RSA 146-A:11-b, II shall be liable for payment of this additional fee which shall be collected and enforced by the department of safety in the manner described in RSA 146-A:11-b. The department of environmental services may waive all or any portion of penalties or interest for good cause. All fee revenues shall be deposited in the hazardous waste cleanup fund in accordance with RSA 147-B:6, I-d.
II. The department of environmental services may apply for, request, solicit, contract for, receive, and accept gifts, grants, donations, and other assistance from any source to carry out the purposes of this subdivision.

Source. 1994, 364:7; 364:11. 1996, 228:107. 1997, 269:4, eff. July 1, 1998 at 12:01 a.m.

Section 147-B:13

    147-B:13 Use of Money Collected. –
I. The department shall use the money collected under RSA 147-B:12 to:
(a) Award grants to pay for the costs associated with the establishment, improvement, or operation of used oil collection centers at public facilities such as fire stations, police barracks, highway departments, county garages, solid waste facilities, or other suitable locations; and provide technical assistance to persons who organize such programs. Political subdivisions and other government entities shall be eligible for grants not to exceed $2,500 on an annual basis for the costs associated with the establishment or improvement of used oil collection facilities. In addition, political subdivisions and other government entities shall be eligible for grants on an annual basis for costs associated with the off-site transportation and recycling of used oil collected from individuals disposing of used oil. Non-profit organizations that focus on waste management and recycling issues, and private businesses that are registered state motor vehicle inspection stations, shall be eligible for grants not to exceed $2,500 on an annual basis for the costs to establish a used oil collection facility. In providing funding under this subparagraph, priority shall be given to reimburse political subdivisions without public collection centers, followed by political subdivisions that have established collection centers, followed by other government entities, state motor vehicle inspection stations, and non-profit organizations. Political subdivisions that use the same center may combine their awards, but in no case shall the amount awarded to a collection center exceed $5,000.
(b) Develop an educational program on the proper use, handling and disposal of used oil by the public and private businesses.
(c) Provide personnel, equipment and services to administer and enforce the provisions of this subdivision and state and federal laws relative to the proper use, handling and disposal of used oil.
II. The commissioner of environmental services may, within the limits of moneys appropriated, pay no more than $10,000 to dispose of all or a portion of a load of contaminated used oil possessed by a political subdivision of the state.

Source. 1994, 364:7. 1996, 228:106, 107. 1997, 269:3. 2000, 146:1, eff. July 22, 2000.

Section 147-B:14

    147-B:14 Transporters Report. – Transporters of used oil registered under RSA 147-A shall submit annual reports to the department detailing the amount and type of used oil which they handle and such other information as the department may require. The department shall prepare the report forms and establish the submittal date.

Source. 1994, 364:7. 1996, 228:106, 107. 1999, 52:6, eff. July 20, 1999.

Section 147-B:15

    147-B:15 Repealed by 2007, 219:11, II, eff. July 1, 2007. –