HAZARDOUS WASTE MANAGEMENT
147-A:1 Repealed by 1986, 202:29, V, eff. Jan. 2, 1987.
In this chapter, the following words shall have the following meanings:
I-a. "Abutter" means any person who owns property adjacent to, or across a road, railroad, or stream from the property on which a hazardous waste facility will be permitted.
I-b. "Commissioner" means the commissioner of environmental services.
II. "Compliance schedule" means the timetable for meeting operator permit requirements.
II-a. "Department" means the department of environmental services.
III. "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.
IV. "Facility" means a location at which hazardous waste is subjected to treatment, storage or disposal and may include a facility where hazardous waste has been generated.
V. "Generation" means the act of producing hazardous waste materials.
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, or household pharmaceutical wastes collected pursuant to RSA 318-E.
VIII. "Hazardous waste management" means the systematic control of the generation, collection, sorting, storage, processing, treatment, recovery and disposal of hazardous waste.
IX. "Imminent hazard" means any condition or practice which presents an immediate and substantial threat to human health or the environment.
X. "Manifest" means the form used for identifying the origin, quantity, composition, routing and destination of hazardous waste.
X-b. "Mortgage" means a mortgage lien, tax lien, or other lien or encumbrance securing the payment of money or performance of an obligation.
XI. "Operator" means any person who, either directly or indirectly, operates or otherwise controls or directs activities at a facility.
XI-a. "Owner" means any person who, either directly or indirectly owns a facility. The term "owner" does not include a person who, without participation in the management or actual operation of a facility, holds indicia of ownership primarily to protect a mortgage on real property on which a facility is located or a security interest in personal property located at the facility.
XII. "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.
" means any material that has been used and, as a result of contamination, can no longer serve the purpose for which it was produced without processing.
XII-b. "Serious bodily injury" means any harm to the body which causes severe, permanent or protracted loss of or impairment to the health or the function of any part of the body.
XIII. "Storage" means the containment of hazardous wastes, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of the hazardous wastes.
XIII-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.
XIV. "Trade secret" means any confidential formula, pattern, device or compilation of information which is used in the employer's business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. A trade secret is known to the employer and those employees to whom it is necessary to confide it.
XV. "Transport" 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.
XVI. "Transporter" means any person who transports hazardous waste.
XVII. "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.
XVIII. "Waste" means any matter consisting of: garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other spent, discarded or abandoned material including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include domestic sewage, irrigation return waters, wastewater discharges in compliance with applicable state or federal permits, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954,
Source. 1981, 413:2; 567:2. 1983, 137:1-3; 227:2, 3, 20; 291:1, I. 1986, 119:1; 202:6, I(e), 29, VI. 1989, 398:1. 1990, 253:1. 1991, 226:1. 1993, 159:2; 323:10. 1994, 199:10, 11. 1996, 228:31, 32, 107. 1998, 64:1-3. 1999, 53:6, eff. July 20, 1999. 2012, 83:1, eff. July 22, 2012. 2016, 214:3, eff. Aug. 6, 2016.
147-A:2-a Repealed by 1999, 53:6, IV, eff. July 20, 1999.
The commissioner shall adopt rules, pursuant to RSA 541-A and after public hearing, relative to:
I. Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter. "Pesticides" as defined in RSA 430 are subject to this chapter only to the extent that they are hazardous wastes.
II. A listing of wastes or combinations of wastes which are deemed to be hazardous.
III. Standards and procedures for the safe operation and maintenance of hazardous waste facilities, including qualifications required for personnel of hazardous waste facilities.
IV. The storage, treatment, containerization, transportation, and disposal of hazardous wastes; provided, however, that no rule shall be adopted or applied so as to impose any transporter permitting program or requirement.
V. A manifest system for tracking hazardous wastes from the point of generation to the point of treatment, storage or disposal.
VI. Procedures and requirements for the record keeping and reporting of the generation, storage, treatment, or disposal of hazardous wastes.
VII. Procedures for the immediate reporting of hazardous waste spills.
VIII. Information required in operator permit applications and transporter registrations.
IX. The terms and conditions under which the department shall issue, modify, suspend, revoke, deny, or approve the transfer of permits or registrations required by this chapter. Actions required by the department may include, but are not limited to, monitoring, contingency plans, closure, and evidence of financial responsibility.
IX-a. Criteria for determining the suitability of proposed hazardous waste facility sites.
X. A sliding scale for operator permit application fees, based on the cost of processing applications.
XI. Compliance schedules for operator permits.
XII. Establishment of minimum qualifications and procedures for persons providing hazardous waste cleanup, emergency response or other services related to the effective implementation of this chapter and RSA 147-B.
XIII. Tanks and all associated appurtenances used to store, transfer, or otherwise contain regulated substances as defined in section 9001(2)(A) of the Federal Resource Conservation and Recovery Act
as amended in 1984 and hazardous waste as defined in rules adopted under RSA 147-A:3, except such tanks and appurtenances subject to the provisions of RSA 146-C. Rules regarding such tanks shall include, but are not limited to, tank standards and operating procedures, registration requirements, compliance schedules, enforcement and inspection, and requirements for closure, financial responsibility, and corrective actions.
XIV. Procedures and standards for certification of laboratories, including but not limited to the form and content of approval and certification application forms, analytical techniques to be employed, standard collection and testing procedures, performance on proficiency test samples, as well as qualifications for laboratory personnel. The procedures and standards shall be no less stringent than the rules and regulations of the Environmental Protection Agency for the certification of hazardous waste testing laboratories.
XV. Procedures and standards for provisional certification of laboratories.
XVI. Procedures and conditions under which certification of hazardous waste testing laboratories may be revoked, suspended, or modified.
XVII. Information to be disclosed when tests are subcontracted.
XVIII. Procedures and criteria for laboratory recertification.
XIX. Procedures for the certification of laboratories which have been certified by other states.
XX. Procedures for approval of alternate testing methodology.
XXI. Fees for certification, including rules for accounting of the fees.
XXII. Procedures and standards for testing of hazardous waste under any expanded certification program.
XXIII. A time frame for the completion of the certification process.
XXIV. Standards for the case-by-case establishment of maximum contaminant levels for unregulated contaminants.
XXV. Conditional exemptions from the permitting, registration, and siting requirements of RSA 147-A:4 and RSA 147-A:6.
XXVI. Administration of a hazardous waste coordinator certification program and alternate programs pursuant to RSA 147-A:5, III, including criteria relating to education and experience and the procedures for initial certification of hazardous waste coordinators as well as continuing education requirements for renewals, and associated fees.
XXVII. Procedures and criteria for administration of a hazardous waste generator self-certification program and associated fees pursuant to RSA 147-A:5, IV.
XXVIII. Procedures for collection of the hazardous waste generator notification fee for new generators of hazardous waste specified in RSA 147-A:6-a.
Source. 1981, 413:2. 1983, 137:4; 227:3. 1985, 287:7. 1986, 120:2; 202:6, I(e). 1987, 143:2. 1989, 398:2. 1990, 208:12. 1995, 308:30-32. 1996, 228:107, 110. 1999, 52:1; 53:1. 2002, 87:3. 2003, 148:3, eff. July 1, 2003. 2005, 168:1, eff. Aug. 20, 2005. 2020, 37:7, eff. July 29, 2020. 2022, 326:3, eff. July 8, 2022.
147-A:4 Operator Permits.
The department shall administer and enforce the hazardous waste operator permit program.
I. Any person constructing, substantially altering, or operating a hazardous waste facility or disposing of hazardous waste on or after July 1, 1980, shall first obtain a permit from the department, unless conditionally exempted by rules adopted pursuant to RSA 147-A:3, XXV.
I-a. The department shall notify the governing body of the municipality in which the facility is or may be located when a new permit application is received by the department. This requirement shall apply to permit applications for treatment, storage, and disposal facilities. A copy of the application shall be included with the notification.
II. A permit application fee not to exceed $7,500 shall accompany each permit, permit modification, and permit renewal application. Permit fees received by the department under this section shall be placed in the hazardous waste cleanup fund as established under RSA 147-B:3, shall be accounted for separately and shall be used in processing applications and enforcing and implementing conditions of a permit.
II-a. The department may conduct such reasonable studies and investigations and employ such consultants as it deems appropriate to carry out the purposes of this section; provided, however, that such studies and investigations are identified in rules adopted pursuant to this chapter. The cost of such studies, investigations, and consultants shall be borne by the applicant.
II-b. A decision by the commissioner to issue a permit for a hazardous waste facility shall not be influenced by the fact that the applicant acquired land or an interest therein for the purpose of constructing such facility.
II-c. Applications for permits shall be upon such forms and shall include such information as the department requires by rules adopted under RSA 147-A:3. The application information shall include, but not be limited to, a performance history of the applicant and of its officers and directors relative to the operation, financial security, and ownership of all facilities owned or operated by the applicant. Whenever requested by the department, the attorney general shall conduct a background investigation of the performance history and criminal record of the applicant and of its officers and directors, if any, and make a report to the department. The cost of any investigation under this paragraph shall be borne by the applicant.
II-d. The department may deny a permit application under this section to a person if any of the following applies:
(a) The person fails to demonstrate sufficient reliability, expertise, integrity and competence to operate a hazardous waste facility.
(b) The person has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of the permit application.
(c) In the case of a corporation or business entity, if any of its officers, directors, partners, key employees or persons or business entities holding 10 percent or more of its equity or debt liability has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of the permit application.
III. If the application is approved, a permit shall be issued for 5 years, subject to modification, suspension, or revocation by the department. An applicant for permit renewal shall demonstrate that the facility complies with rules adopted by the department under RSA 147-A.
IV. Any permit issued under this section may be modified, suspended, or revoked by the department at any time if the permittee fails to comply with the terms and conditions of the permit; provided, no permit shall be modified, suspended or revoked until the department has provided the affected party with the opportunity for an adequate hearing and with written notice of the intent of the department to take action and the reasons for the action.
IV-a. No permit issued by the department under this section shall be transferred by the permittee to any person without the prior written approval of the department. Applications for the transfer of permits shall be upon such forms and shall include such information as the department requires by rules adopted under RSA 147-A:3, IX. The application information shall include, but not be limited to, a performance history of the applicant and of its officers and directors relative to the operation, financial security, and ownership of all facilities owned or operated by the applicant. Whenever requested by the department, the attorney general shall conduct a background investigation of the performance history and criminal record of the applicant and of its officers and directors, if any, and make a report to the department. The applicant shall also submit a statement that the proposed facility is consistent with the provisions of a district plan. The cost of any investigation under this paragraph shall be borne by the applicant. The department shall hold a public hearing no later than 30 days prior to making any final decision on an application to transfer a permit issued under this section. Notice of such public hearing shall be published in a newspaper of local circulation within the region of the public or private hazardous waste facility at least 2 weeks prior to such public hearing. The applicant shall notify abutters of the request for transfer of a permit under this section.
V. If meeting the requirements for the issuance of a permit or complying with the conditions of a permit would, in the opinion of the department, cause undue hardship without equal or greater benefit to the public, the department may issue an interim permit. The interim permit shall contain a compliance schedule for meeting the requirements of this section and conditions the department deems necessary. Renewal or extensions of the compliance schedule may be given only after opportunity for public hearing and comment in the town or city affected by each renewal or extension. No interim permit shall be granted to a person who is causing a danger to public health or safety.
VI. No person shall construct a hazardous waste facility after July 1, 1979, without an interim permit issued by the department. The department shall include terms and conditions in the interim permit as it deems necessary, utilizing existing rules relative to solid waste and, in the department's discretion, standards as proposed by the Environmental Protection Agency as published in the Federal Register under the authority granted in Subtitle C of 42 U.S.C., Section 6901 et seq.
VII. In administering this section, the department shall be exempt from the provisions of RSA 541-A:29, II, but shall act on all matters before it under this section in as expeditious a manner as the law permits.
Source. 1981, 413:2. 1983, 137:5, 6; 227:3; 455:8. 1986, 158:1-3; 202:6, I(e). 1989, 398:3, 4. 1991, 226:2. 1994, 412:13. 1996, 228:106, 107, 110. 1997, 269:1. 1998, 64:4. 1999, 53:2, eff. July 20, 1999. 2007, 219:1, eff. July 1, 2007.
147-A:4-a Repealed by 2020, 37:4, XI, eff. July 29, 2020.
147-A:4-b Disclosure of Ownership.
Any application for a permit under RSA 147-A:4 shall be signed under oath by a representative of the applicant and shall contain the following information:
I. Name and address of the applicant.
II. If the applicant is a corporation, the state of incorporation, the address of its principal place of business, and the names and addresses of its directors, officers, and shareholders; if the applicant is a partnership, the state of formation, the address of its principal place of business, and the names and addresses of its partners, whether general or limited; and if the applicant is any other kind of association, the state of formation, the address of its principal place of business, and the names and addresses of its members or participants.
III. The exact location where the applicant intends to conduct the business for which it is seeking the permit.
IV. Such financial information as the commissioner may require by rules adopted under RSA 147-A:3.
Source. 1989, 398:5. 1996, 228:110, eff. July 1, 1996.
147-A:5 Terms and Conditions of Operator Permits; Facility Personnel; Certified Hazardous Waste Coordinator Program; Hazardous Waste Generator Self-Certification Program.
I. The department shall not issue a permit to a hazardous waste facility unless the facility meets the terms and conditions required in rules adopted by the department. These terms and conditions include, but are not limited to, evidence of financial responsibility in the amount set by the department after consultation with the commissioner of insurance. This amount shall be whatever is necessary to:
(a) Protect the public health and welfare and the environment; and
(b) Insure that appropriate measures will be taken to prevent present and future damage to the public health and safety or to the environment, in the event that the operations at the facility are abandoned, interrupted, or stopped.
II. Personnel employed in the operation of any facility shall meet the qualifications concerning training as deemed necessary by the department, after a review of the characteristics, properties, and volume of hazardous wastes to be treated, stored, or disposed of at the facility.
III. (a) Each hazardous waste generator that generates more than 220 pounds of hazardous waste per month shall have on staff at the facility where the hazardous waste is generated a hazardous waste coordinator certified by the department. The certified hazardous waste coordinator shall be responsible for ensuring that the generator is aware of and in compliance with applicable requirements relating to hazardous waste management, including but not limited to storage, transportation, and disposal. Certification shall not be transferable. Initial certification shall be valid for one year and may be renewed for subsequent one-year terms. The department may charge a reasonable fee to cover expenses for education and training programs that fulfill the initial certification and continuing education requirements. The commissioner may authorize alternative certified hazardous waste coordinator programs provided the program demonstrates equivalent on-site staffing, training, continuing education, and management organization to meet the responsibilities of this paragraph.
(b) Each application for initial or renewal of a hazardous waste coordinators certification shall be accompanied by a non-refundable fee of $125 per year to cover department expenses for conducting the certification program.
IV. (a) Each hazardous waste generator that generates less than 220 pounds (100 kilograms) of hazardous waste per month shall submit to the department, every 3 years, a self-certification declaration stating that the facility is in compliance with the applicable hazardous waste generator rules. The declaration shall be on a form provided by the department.
(b) Each hazardous waste generator that generates less than 220 pounds/100 kilograms of hazardous waste per month shall pay non-refundable fees at a rate of $60 per year for the period of January 1, 2004 to June 30, 2007, and at a rate of $90 per year beginning July 1, 2007, to cover department expenses for conducting the self-certification program and hiring of program staff. Total fees due for each year shall be submitted with the self-certification declaration form required under subparagraph (a).
(c) If the self-certification fee is not paid within 60 days of the due date, interest shall be assessed at a rate established by the commissioner, and shall be deposited into the cleanup fund. The commissioner may waive all or any portion of interest for good cause.
(d) Political subdivisions of the state shall be exempt from the fee for submitting a self-certification declaration.
(e) Hazardous waste generators that are participants in a department-developed multi-media compliance assurance program referred to as an environmental results program, or ERP, shall be exempt from this paragraph.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1996, 228:107. 2002, 87:1, 2. 2003, 148:1, 2, eff. July 1, 2003. 2005, 168:2, eff. Aug. 20, 2005; 254:4, eff. Sept. 12, 2005. 2007, 219:2, eff. July 1, 2007. 2022, 326:4, 5, eff. July 8, 2022.
147-A:5-a Hazardous Waste Testing Laboratory Certification.
I. Any laboratory conducting tests for the presence of hazardous waste, other than water testing laboratories accredited under RSA 485:44, may apply for certification by the department.
II. The department shall establish and administer a program to certify on an annual basis the facilities, techniques, collection procedures, testing methods, analytical performance, and qualifications of personnel of any laboratory for the purposes of RSA 147-A:5-a, I. The program shall be no less stringent than the United States Environmental Protection Agency's rules and regulations for the certification of hazardous waste laboratories. Certification shall be granted on an analyte-by-analyte basis and shall be based on the capability of the laboratory to analyze samples with precision and accuracy.
III. The participation of laboratories in the certification program established under this section shall be voluntary.
IV. Provisional certification may be granted on terms and conditions as set forth in rules adopted by the department in accordance with RSA 541-A.
V. The department shall approve and certify laboratories certified in other states upon request, provided that the certification program in such states is at least equivalent to that enforced nationally by the United States Environmental Protection Agency. The department may inspect or otherwise verify that the applying laboratory is performing at the certification level.
VI. An alternate laboratory test method may be acceptable only if it is equivalent to the prescribed test in both accuracy and reproducibility as it relates to the determination of compliance with any maximum contaminant level. The department shall certify an alternate laboratory method if the method has been approved by the United States Environmental Protection Agency.
VII. Certification may be denied, revoked, suspended, or modified as determined by rules of the department. A laboratory which has had certification revoked or suspended shall be recertified at such time as it again meets criteria for certification, and requests recertification.
VIII. Changes in laboratory ownership, location, personnel, methodology, or other factors significantly affecting the performance of analyses for which it was originally certified shall be reported to the certification officer of the department of environmental services within 48 hours of the change.
IX. A laboratory may subcontract tests which it is not certified to perform to another laboratory which is so certified, provided that the test report clearly indicates which tests were subcontracted and that laboratory test records which specify the name and address of the laboratory which performed the work are maintained and made accessible to the department upon request.
X. Nothing in this section shall be construed to limit or control laboratory services which are offered or performed outside the scope of the certification program provided for in RSA 147-A:5-a, I and II.
Source. 1987, 143:1. 1996, 228:106, 107. 2004, 116:6, eff. May 17, 2004.
147-A:5-b Fees; Advertising.
I. The commissioner shall adopt rules under RSA 541-A, after public hearing, establishing a schedule of reasonable fees to be paid by any laboratory applying for approval and certification, including any travel and consultant costs related to certification of out-of-state laboratories.
II. The schedule of fees shall be designed to recover the direct costs and travel expenses associated with the certification services provided under RSA 147-A:5-a, and such fees shall be available to the department to be used to defray the cost of travel and associated expenses for such services, including any additional travel and consultant expenses related to certification of out-of-state laboratories. Funds received shall be deposited in a special account maintained by the department of environmental services to offset the costs of the inspection program. Any balance remaining at the end of the fiscal year shall lapse to the general fund. This paragraph shall not be construed to mean that all agency costs associated with the certification program, such as agency overhead, facilities, and staff services are to be prorated and recovered by fees.
III. A laboratory shall provide each prospective New Hampshire client with a list which clearly indicates the specific analytes which the laboratory is certified to test. In the event that a client has paid a fee to a laboratory in anticipation of testing services before the receipt of said test sampling materials, and the client subsequently determines upon receipt of the test materials that the laboratory is not certified to provide testing services to meet his needs, the client may cancel his order for any testing services which have not yet been performed, and the laboratory shall make full refund to the client. Test reports shall clearly identify those specific analytes for which a laboratory has certification and shall specifically identify any analyses which were subcontracted to other laboratories.
Source. 1987, 143:1. 1996, 228:106, 110, eff. July 1, 1996.
147-A:6 Transporter Registration.
The department shall administer and enforce the transporter program.
I. Any transporter of hazardous waste within the state shall annually register with the department using forms provided by the department before engaging in the transportation of hazardous wastes, unless conditionally exempted by rules adopted pursuant to RSA 147-A:3, XXV.
II. Information submitted with each registration application and registration renewal application shall include:
(a) Transporter's name;
(b) Mailing address of transporter's office;
(c) Telephone number of the transporter's office;
(d) The name and title of a contact person;
(e) The transporter's U.S. EPA identification number;
(f) The transporter's U.S. DOT motor carrier census number or interstate commerce commission number;
(g) The Research and Special Programs Administration of the United States Department of Transportation registration number, if applicable;
(h) An attestation that the transporter is in compliance with the financial responsibility requirements of 49 C.F.R. section 387.9.
III. The registration period shall be from July 1, of a given year, to June 30, of the following year. The division shall develop procedures to expedite the registration of transporters who wish to initiate operations in the state during the registration period.
IV. Nothing in this section shall effect in any way any authority the state may have under other statutes to enjoin the operations of a transporter that has been convicted of a violation of a criminal statute relating to its hazardous waste transporter operations.
V. (a) The department may conduct reasonable investigations to determine whether applicants and registrants have sufficient reliability, expertise, integrity, and competence to transport hazardous waste.
(b) Transporters shall notify the department of any change in the information submitted pursuant to paragraph II.
(c) The department may modify, suspend, or revoke a transporter registration if the transporter violates any provision of RSA 147-A, any rules adopted by the commissioner pursuant to RSA 147-A, or any rules adopted by the commissioner of the department of safety pursuant to RSA 21-P:17.
(d) The department may deny a registration application or registration renewal application or suspend or revoke a registration if any of the following apply:
(1) The applicant or registrant fails to demonstrate sufficient reliability, expertise, integrity, and competence to transport hazardous waste.
(2) The applicant or registrant has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of registration application or registration renewal application.
(3) In the case of a corporation or business entity, any of its officers, directors, partners, key employees, or persons or business entities holding 10 percent or more of its equity or debt liability has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of the registration application or registration renewal application.
Source. 1981, 413:2. 1983, 137:7, 227:3. 1986, 158:4, 5; 202:6, I(e). 1989, 300:1. 1990, 3:76, 77. 253:2, 13. 1991, 112:1. 1992, 263:4. 1995, 308:33. 1996, 228:106, 107. 1999, 52:2-4, eff. July 20, 1999; 53:4, eff. July 20, 1999.
147-A:6-a Initial Notification Fee.
I. Each initial notification of hazardous waste activity filed by any new hazardous waste generator in New Hampshire shall be accompanied by a non-refundable fee of $150.
II. Political subdivisions of the state shall be exempt from this notification fee.
III. Hazardous waste generators that generate less than 220 pounds/100 kilograms of hazardous waste per month and that are participants in a department-developed multi-media compliance assurance program referred to as an environmental results program, or ERP, shall be exempt from this notification fee.
Source. 2003, 148:4, eff. July 1, 2003. 2005, 254:5, eff. Sept. 12, 2005. 2007, 219:3, eff. July 1, 2007. 2022, 326:6, eff. July 8, 2022.
147-A:7 Inspections; Right of Entry.
I. For the purpose of determining compliance with this chapter, any rule adopted by the department relative to this chapter or any permit issued by the department, an employee or an authorized representative of the department may, upon presentation of appropriate credentials and at any reasonable time:
(a) Enter any hazardous waste facility;
(b) Inspect, photograph, and obtain samples of any waste, including samples from containers or vehicles which the department has reason to believe contain hazardous wastes; and
(c) Inspect and copy any records, information or test results relating to wastes.
II. 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 provided by the department.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1989, 6:1. 1996, 228:107, eff. July 1, 1996.
147-A:8 Official Investigation.
I. The attorney general shall have the power to examine witnesses and documents and to request information for the purpose of enforcing the provisions of this chapter and the provisions of RSA 147-B.
II. If, during the course of any investigation under this chapter or RSA 147-B, the attorney general believes a person may have information or be in possession, custody or control of any document or other tangible object relevant to the investigation, before the institution of any court proceedings, the attorney general may serve upon the person a written demand for information; or a subpoena to appear and be examined under oath; or a subpoena duces tecum to appear and produce the documents or objects for inspection and copying. A written demand for information may be mailed to the person believed to have such information. A subpoena or subpoena duces tecum of the attorney general may be served by the person designated therein to serve it. The attorney general may administer an oath or affirmation to any person and conduct hearings in aid of any investigation under this chapter. Any testimony given by any person so sworn shall be subject to the pains and penalties of perjury.
III. Any subpoena issued pursuant to this chapter shall:
(a) Describe the nature of the investigation.
(b) Describe the documents or objects with sufficient definiteness to permit them to be fairly identified.
(c) Prescribe a reasonable time at which the person shall appear to testify or within which the documents or objects shall be produced, and advise the person that objections to or reasons for not complying with, the subpoena may be filed with the attorney general on or before that date.
(d) Specify a place for the taking of testimony or for production and designate a person who shall be custodian of the documents or objects.
IV. A written demand for information issued pursuant to this chapter shall:
(a) Describe the nature of the investigation.
(b) Describe the information sought in connection with that investigation.
(c) Prescribe a reasonable time for complying with the information demand, and advise the person that objections to or reasons for not complying with the information demand may be filed with the attorney general on or before that date.
V. If a person objects to or fails to comply with the information demand, subpoena or subpoena duces tecum served upon him under this chapter, the attorney general may file in the superior court of the county in which the person resides or maintains his principal place of business or if the person is a nonresident and has no principal place of business within this state, in Merrimack county superior court, a petition for an order of the court to enforce the subpoena or information demand. Notice of hearing and a copy of the petition shall be served upon the person, who may appear in opposition to the petition. If the court finds reasonable cause to believe that there may have been a violation of any provision of this chapter or of RSA 147-B, and that the information, testimony, documents or objects sought are relevant to the investigation, it shall order the person to provide the information, to appear for testimony, or to produce the document or object for inspection and copying as demanded, subject to any modification of the subpoena or information demand the court prescribes.
Source. 1981, 413:2. 1986, 158:6, eff. July 27, 1986.
147-A:9 Strict Liability of Owner, Operator, Generator, or Transporter.
I. Any owner, operator, generator, or transporter who causes or suffers the treatment, storage, transportation or disposal of hazardous waste in violation of RSA 147-A or rules adopted or permits issued under RSA 147-A or RSA 106-A:17-RSA 106-A:19
or rules adopted by the commissioner of the department of safety under RSA 106-A:18 shall be strictly liable for costs directly or indirectly resulting from the violation relating to:
(a) Containment of hazardous wastes;
(b) Necessary cleanup and restoration of the site and the surrounding environment; and
(c) Removal of the hazardous wastes.
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. In the event of a release during such transport, the department of environmental services shall be responsible for containment of household hazardous wastes, removal of the household hazardous wastes, necessary cleanup and restoration of the affected site and the surrounding environment, and any required evaluation, assessment, and monitoring associated with the release. Any costs associated with such containment, removal, cleanup, and restoration, and any required evaluation, assessment, and monitoring shall be a charge against the hazardous waste cleanup fund established in RSA 147-B:3.
II. The attorney general may bring an action to recover costs of containment, cleanup, or removal incurred by the department, the state, or both. This action may be brought in connection with an action for injunctive relief or in a separate action in the superior court. In connection with an action brought under this paragraph, the attorney general may obtain a prejudgment attachment in accordance with RSA 511-A to secure any judgment which may be recovered.
III. 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, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1994, 199:12. 1996, 228:107, eff. July 1, 1996; 266:8, eff. June 10, 1996. 2006, 282:1, eff. Sept. 13, 2006.
147-A:10 Confiscation of Property.
I. Any property of a generator, owner, operator, or transporter including, but not limited to, vehicles, containers, documents and wastes, used in connection with the disposal, storage, treatment, or transportation of hazardous waste in violation of RSA 147-A or RSA 106-A:17-RSA 106-A:19
may be seized by the state. The property shall be stored as directed by the court so that the property may be used as evidence in a trial relating to the violation.
II. Within 14 days of seizure of any property, the attorney general shall file a libel in the superior court of the county in which the property was seized, requesting forfeiture of the property. The court shall issue a summons requiring the state to send by certified mail a copy of the libel to the owner of the property and other persons appearing to have an interest in the property.
III. The superior court shall promptly hold a hearing which shall be conducted as a civil in rem action without a jury and shall order forfeiture of the property if the state establishes by a preponderance of the evidence that the owner knew or should have known that the property was used in the illegal treatment, transportation, storage or disposal of hazardous waste.
IV. The court may order the sale of the confiscated property or any other disposition, in the court's discretion as justice may require. After deducting the storage expenses, the proceeds from the sale of the confiscated property shall be transferred to the New Hampshire hazardous waste cleanup fund established under RSA 147-B.
Source. 1981, 413:2. 1994, 199:13, eff. July 23, 1994. 2014, 204:7, eff. July 11, 2014.
147-A:11 Duty to Report.
I. Any generator, owner, operator, transporter, or employee of a hazardous waste facility who becomes aware of any storage, treatment, or disposal of hazardous waste in violation of this chapter shall immediately report the violation to the department.
II. Any person who fails to give notice as required by RSA 147-A:11, I, shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
III. Each day of a continuing violation shall constitute a separate offense.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1994, 199:14. 1996, 228:107, eff. July 1, 1996.
147-A:12 Discrimination Prohibited.
I. No employer shall discharge or discriminate against an employee because the employee has reported a violation of this chapter to the department as required by RSA 147-A:11, I.
II. Any employee who has been discharged or discriminated against in violation of RSA 147-A:12, I, may bring an action against the employer in the superior court for injunctive relief, and for compensatory and exemplary damages.
III. Reasonable attorney's fees shall be awarded to any employee who prevails in an action against his employer brought under RSA 147-A:12.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1996, 228:107, eff. July 1, 1996.
147-A:13 Imminent Hazard.
Notwithstanding any other provision of this chapter, the department, upon receipt of information that the generation, storage, treatment, transportation, or disposal of any waste may present an imminent and substantial hazard to human health or to the environment, may take action as it determines to be necessary to protect human health or the environment. The action the department may take includes, but is not limited to:
I. Issuing an order directing the owner or operator of a hazardous waste facility or the custodian of waste constituting a hazard 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 to the waste management council in accordance with the provisions of this chapter.
II. Contracting for and supervising the cleanup of a hazardous waste spill which the department determines is an imminent hazard, except as provided in RSA 154:7. The department may take action as necessary to prevent damage to human health or the environment; or
III. Requesting the attorney general to bring an action for injunctive relief, including a mandatory injunction.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1989, 341:5. 1994, 199:15. 1996, 228:107. 1999, 52:5, eff. July 20, 1999.
147-A:13-a Hazardous Waste Sites.
I. If a hazardous waste site is discovered which poses an imminent threat to the public health, safety, and welfare, the commissioner of environmental services may, after court authorization or order, make application to the governor for funds to clean up such wastes under the authority of RSA 9:13-d.
II. Authorization for expenditures for such purpose shall be as prescribed in RSA 9:13-d.
III. The attorney general shall institute legal proceedings to obtain reimbursement for any moneys so expended by the state under this section.
Source. 1986, 198:22, eff. Aug. 2, 1986.
The department may:
I. Issue an order to any person in violation of this chapter, a permit issued under this chapter, or a rule adopted under this chapter to comply with this chapter, the permit, or the rule, and require such remedial measures as may be necessary; or
II. Request the attorney general to bring a civil action in superior court for appropriate relief, including a temporary or permanent injunction or both, to enforce any provision of this chapter or any permit, rule, or order issued pursuant to this chapter.
Source. 1981, 413:2. 1983, 137:8; 227:3. 1986, 202:6, I(e). 1996, 228:107, eff. July 1, 1996.
147-A:14-a Recording of Orders.
Any order issued by the department pursuant to this chapter may be recorded in the registry of deeds for the country in which the subject facility is situated. A recorded order shall run with the land, provided that an appropriate description of the land involved including the accurate name of the owner thereof shall be included in the order. No fee shall be charged for recording an order; however, a fee may be charged for discharging an order.
Source. 1983, 137:9. 1986, 202:6, I(e). 1996, 228:107, eff. July 1, 1996.
I. Any person aggrieved by an action of the department may appeal to the waste management council established under RSA 21-O:9 for review of:
(a) A decision of the department to grant, deny, modify, suspend or revoke an operator or transporter permit; or
(b) An order issued by the department relative to this chapter.
II. The waste management council may affirm, deny or modify the decision or order of the department. The council shall conduct its appeals in accordance with rules adopted under RSA 21-O:14.
III. Rehearings and appeals from a decision of the council shall be in accordance with RSA 541.
Source. 1981, 413:2. 1983, 227:3; 291:1, I. 1986, 202:6, I(e). 1989, 341:6. 1996, 228:107, eff. July 1, 1996.
147-A:16 Criminal Penalty; Fine.
I. Any person shall be guilty of a class B felony if a natural person, or guilty of a felony if any other person who knowingly:
(a) Violates any provision of RSA 147-A or any rule adopted by the commissioner relative to RSA 147-A;
(b) Violates any term or condition of a permit or an order issued under RSA 147-A;
(c) Makes or certifies a material false statement relative to any document required by RSA 147-A; or
(d) Tampers with a monitoring device or fails to comply with a monitoring method required under RSA 147-A.
II. Notwithstanding RSA 651:2, a natural person may, in addition to any sentence of imprisonment, probation or conditional discharge, be fined not more than $50,000 if found guilty of any violation of RSA 147-A:16, I. Each day of violation shall constitute a separate offense.
III. Criminal penalties and fines imposed under RSA 147-A:16 shall be paid to the New Hampshire hazardous waste cleanup fund established under RSA 147-B:3.
IV. Notwithstanding RSA 106-B:15 or any other provision of law to the contrary, police employees of the department of safety are authorized to conduct investigations, serve criminal process, and make arrests for violations of this chapter and any rules adopted under this chapter.
V. Notwithstanding paragraph I, failure to measure or record liquid hazardous waste by transporters in accordance with RSA 147-A:6 shall be a violation.
Source. 1981, 413:2. 1983, 137:10; 227:3. 1986, 202:6, I(e). 1989, 300:2. 1990, 65:1. 1996, 228:110, eff. July 1, 1996.
147-A:16-a Knowing Endangerment; Penalties.
I. Any person who treats, stores, transports, causes to be transported, disposes of or otherwise handles any hazardous waste in knowing violation of any material condition or requirement of such permit or in knowing violation of any material condition or requirement of any applicable regulations or standards and any person who knowingly:
(a) Transports or causes to be transported any hazardous waste to an unpermitted facility;
(b) Treats, stores or disposes of any hazardous waste without a permit;
(c) Omits material information or makes any false material statement or representation in any application, label, manifest, records, report, permit or other document filed, maintained or used for purposes of compliance with regulations promulgated by the department;
(d) Generates, stores, treats, transports, disposes of, exports or otherwise handles any hazardous waste and who knowingly destroys, alters, conceals or fails to file any record, application, manifest, report or other document required to be maintained or filed for purposes of compliance with regulations promulgated by the department;
(e) Transports or causes to be transported any hazardous waste without a manifest; or
(f) Exports a hazardous waste:
(1) without the consent of the receiving country, or
(2) where there exists an international agreement between the United States and the government of the receiving country establishing notice, export and enforcement procedures for the transportation, treatment, storage and disposal of hazardous wastes, in a manner which is not in conformance with such agreement and who knew at the time that another person would thereby be placed in imminent danger of death or serious bodily injury shall be guilty of knowing endangerment.
II. A natural person found guilty of knowing endangerment shall be guilty of a class A felony and, notwithstanding the provisions of RSA 651:2, may be fined not more than $250,000 in addition to any sentence of imprisonment, probation or conditional discharge. Any other person found guilty of knowing endangerment shall be guilty of a felony and subject to a fine of not more than $1,000,000.
III. In this section, "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; or
(b) 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,
Source. 1993, 159:3. 1996, 228:106, 107, eff. July 1, 1996.
147-A:16-b Special Rules Relative to Knowing Endangerment.
I. In determining whether a natural person knew that his or her conduct placed another in imminent danger of death or serious bodily injury, knowledge possessed by another may not be attributed to that person. Circumstantial evidence may be used to prove possession of actual knowledge.
II. In addition to other available affirmative defenses, it is an affirmative defense that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of:
(a) an occupation, a business or a profession; or
(b) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person has been made aware of the risks involved prior to giving consent.
Source. 1993, 159:3, eff. May 24, 1993.
147-A:17 Civil Forfeiture.
I. Any person shall be subject to a civil forfeiture of up to $50,000 for each day of a continuing violation, in addition to enforcement by injunctive relief, who violates:
(a) Any provision of RSA 147-A or any rule adopted by the commissioner relative to RSA 147-A; or
(b) Any term or condition of a permit or an order issued under RSA 147-A.
II. Civil forfeitures levied under RSA 147-A:17, I, shall be paid to the New Hampshire hazardous waste cleanup fund established under RSA 147-B.
III. In addition to any civil forfeiture imposed under RSA 147-A:17, I, any person who violates or causes or suffers a violation of RSA 147-A:17, I, shall be strictly liable without regard to fault for costs directly or indirectly resulting from the violation relating to:
(a) Containment of hazardous wastes;
(b) Necessary cleanup and restoration of the site and the surrounding environment; and
(c) Removal of the hazardous wastes.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1996, 228:110, eff. July 1, 1996.
147-A:17-a Administrative Fines.
I. 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 paragraph 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 commissioner shall adopt rules, under RSA 541-A, relative to:
(a) A schedule of administrative fines which may be imposed under this paragraph for violations of this chapter as provided above.
(b) Procedures for notice and hearing prior to the imposition of an administrative fine.
II. The proceeds of administrative fines levied pursuant to paragraph I shall be deposited by the commissioner into the hazardous waste cleanup fund established by RSA 147-B.
Source. 1989, 22:1. 1995, 217:4, eff. Jan. 1, 1996.
147-A:18 Interstate Cooperation.
The general court encourages cooperative activities by the department with other states for the improved management of hazardous wastes; for improved, and so far as is practicable, uniform state laws relating to the management of hazardous wastes; and for compacts between this and other states for the improved management of hazardous wastes.
Source. 1981, 413:2. 1983, 227:3. 1986, 202:6, I(e). 1996, 228:107, eff. July 1, 1996.
Nothing contained in this chapter shall be construed to modify or limit the duties and authority conferred upon the department under RSA 146-A, RSA 485, RSA 485-A, or RSA 125-C.
Source. 1981, 413:2. 1989, 339:18. 1996, 228:33, eff. July 1, 1996.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are severable.
Source. 1981, 413:2, eff. June 23, 1981.