TITLE X
PUBLIC HEALTH

Chapter 146-A
OIL DISCHARGE OR SPILLAGE IN SURFACE WATER OR GROUNDWATER

Section 146-A:1

146-A:1 Declaration of Purpose. – The purpose of this chapter is to cope with the problem of pollution from the spillage or discharge of oil, recognizing the damage resulting to vegetation, marine, animal and bird life from such pollution. It is the intent of this chapter to provide procedures that will expedite the cleanup of oil spillage, mitigate the adverse effects of oil discharges, encourage preventive measures, and provide financial assistance to victims of such discharges and to encourage private organizations to assist in these efforts.

Source. 1971, 266:1. 1987, 377:1. 1991, 92:1, eff. May 13, 1991.

Section 146-A:2

146-A:2 Definitions. –
For the purpose of this chapter the following words shall have the following meanings, unless the context otherwise requires:
I. "Barrel" means 42 United States gallons at 60 degrees Fahrenheit;
I-a. "Discharge" or "spillage" means the release or addition of any oil to land, groundwater or surface water;
I-b. "Federal On-Scene Coordinator" means the federal official predesignated by the U.S. Environmental Protection Agency or the U.S. Coast Guard to coordinate and direct federal responses under subpart D, or the official designated by the lead agency to coordinate and direct removal under subpart E, of the National Contingency Plan;
I-bb. "Foreclosure" means any foreclosure by a holder of a mortgage lien, or, in the case of a tax lien, the conveyance of property by tax deed by a municipality, county or state pursuant to the procedures of RSA 80:20-RSA 80:42-a or of RSA 80:58-RSA 80:86.
I-c. "Groundwater" means subsurface water that occurs beneath the water table in soils and geologic formations;
I-d. "National Contingency Plan" means the National Contingency Plan prepared and published under section 311(d) of the Federal Water Pollution Control Act (33 U.S.C. section 1321(d), as amended by the Oil Pollution Act of 1990, Pub. L. 101-380, 104 Stat. 484 (1990));
I-e. (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 or vessel as a fiduciary for purposes of administering an estate or trust of which such facility or vessel is a part; and
(3) Who is otherwise not engaged in petroleum production, refining, or marketing.
(b) Any person or entity acting as trustee of a business trust, a realty trust, a real estate trust, a nominee trust, or any similar trust shall not be considered a "fiduciary" under this chapter.
I-f. "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 a facility or vessel and who is otherwise not engaged in petroleum marketing, refining or production.
I-g. "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.
I-h. "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.
II. "New Hampshire oil pollution control fund" means the fund established pursuant to RSA 146-A:11-a, I;
III. "Oil" means petroleum products and their by-products of any kind, and in any form including, but not limited to, petroleum, fuel, sludge, crude, oil refuse or oil mixed with wastes and all other liquid hydrocarbons regardless of specific gravity and which are used as motor fuel, lubricating oil, or any oil used for heating or processing. The term "oil" shall not include natural gas, liquified petroleum gas or synthetic natural gas regardless of derivation or source;
III-a. "Oil pipeline facility" means any intrastate pipeline structure, or section of any interstate pipeline structure, of any kind and its related appurtenances located within the boundaries of this state that is used or capable of being used for pumping, handling, transferring, transporting, processing, refining, or storing oil;
IV. "Oil terminal facility" means any facility of any kind and its related appurtenances located within the boundaries of this state that is used or capable of being used for pumping, handling, transferring, processing, refining or storing oil;
V. "Operator" shall mean any person owning or operating any oil terminal facility or vessel, whether by lease, contract, or any other form of agreement;
VI. "Person" shall mean individual, partnership, joint venture, corporation, association or any group of the foregoing or the United States of America, any agency thereof and any other legal entity;
VI-a. "Removal costs" means the costs of containment, removal, cleanup, restoration, and remedial or corrective action or measures that are incurred after a spillage or discharge of oil has occurred or, in any case in which there is a threat of a spillage or discharge of oil, the costs to prevent, minimize or mitigate oil pollution from such an incident;
VI-b. "Surface water" means perennial and seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, watercourses, and other bodies of water, natural or artificial;
VI-c. "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.
VI-d. "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.
VII. "Unexplained spill" means any spill or discharge of oil that cannot be attributed to a particular source;
VIII. "Vessel" includes every description of watercraft or other contrivance used, or capable of being used as a means of transportation on water or land whether self-propelled or otherwise and shall include barges, tugs, and tanker trucks;
IX. "Facility" means a location, including structures or land, at which oil is subjected to treatment, storage, processing, refining, pumping, transfer, or collection;
X. [Repealed.]
XI. "Wholesale terminal facility" means any facility of any kind and its related appurtenances that is primarily a wholesale distributor of oil products and that is used or capable of being used for pumping, handling, transferring, processing, refining, or storing oil.
XII. "Commissioner" means the commissioner of the department of environmental services.
XIII. "Department" means the department of environmental services.
XIV. "Qualified facility" means a facility:
(a) That has had no single discharge exceeding 1,000 gallons or no 2 discharges each exceeding 42 gallons, other than discharges that are the result of natural disasters, acts of war, or terrorism;
(b) That has an aggregate aboveground oil storage capacity of 5,000 gallons or less, of which not more than 660 gallons is for storage of gasoline; and
(c) For which preparation of a spill prevention, control, and countermeasure (SPCC) plan does not necessitate the practice of engineering as defined in RSA 310-A:2, III.

Source. 1971, 266:1. 1979, 463:4. 1981, 119:1, 3. 1985, 287:1, 2; 401:5. 1986, 182:3, 4, I. 1987, 377:12. 1988, 271:3. 1991, 92:2-5. 1993, 323:2, 3. 1994, 199:4-6. 1995, 216:1. 1996, 228:24. 2000, 76:1, eff. June 20, 2000. 2012, 147:5, eff. July 1, 2012. 2014, 137:1, eff. June 16, 2014.

Section 146-A:2-a

146-A:2-a Offshore Oil and Natural Gas Exploration Prohibited. –
I. In this section, "development" means any pipeline or other infrastructure that transports oil or natural gas from production facilities located in federal waters or other coastal state waters in the Atlantic Ocean through New Hampshire coastal state waters and any land-based support facilities for offshore oil or natural gas production facilities located in the Atlantic Ocean.
II. Offshore oil or natural gas exploration, development, and production is prohibited in coastal state waters.
III. No tidal or submerged lands in coastal state waters shall be leased for the purposes of oil or natural gas exploration, development, or production.
IV. The department of environmental services shall not:
(a) Issue any permit or other approval for any development associated with offshore drilling for oil and natural gas whether proposed for in coastal state waters or outside of coastal state waters.
(b) Permit, approve or otherwise authorize any oil or natural gas exploration, development, or production in coastal state waters.
(c) Develop, adopt, or endorse any plans for the exploration, development, or production of oil or natural gas in coastal state waters.

Source. 2019, 343:1, eff. Nov. 10, 2019.

Section 146-A:3

146-A:3 Discharge of Oil. – The discharge or spillage of oil into the surface water or groundwater of this state, or in a land area where the oil will ultimately seep into surface water or groundwater is prohibited. Nothing in this chapter, however, shall prohibit the application of mosquito larvae control compounds under permits issued by the pesticide control board pursuant to RSA 430.

Source. 1971, 266:1. 1976, 18:22. 1991, 92:6, eff. May 13, 1991.

Section 146-A:3-a

146-A:3-a Strict Liability for Containment, Cleanup and Removal Costs. –
I. Any person who, without regard to fault, directly or indirectly causes or suffers the discharge of oil into or onto any surface water or groundwater of this state, or in a land area where oil will ultimately seep into any surface water or groundwater of the state in violation of this chapter, or rules adopted under this chapter, shall be strictly liable for costs directly or indirectly resulting from the violation relating to:
(a) Containment of the discharged oil;
(b) Cleanup and restoration of the site and surrounding environment, and corrective measures as defined under RSA 146-A:11-a, III(a) and (b); and
(c) Removal of the oil.
I-a. (a) Any operator or person who has legal ownership of real property upon which underground storage facilities or other petroleum storage facilities which are not in compliance with the requirements of RSA 146-A or RSA 146-C are located shall be strictly liable for the costs of removal. The department shall have a lien upon the real property for all costs incurred by the department in removing underground storage facilities or other petroleum storage facilities pursuant to RSA 146-A:11-a, III(f) from the real property, including interest calculated pursuant to RSA 336:1, II where such costs are not paid as prescribed by the department. Such lien shall arise at the time such costs are incurred by the department and shall continue until the liability for such costs, including interest is satisfied or becomes unenforceable. The lien shall become valid and effective against the real property upon the department's recordation of a notice of lien in the registry of deeds for the county in which the real property is located. The notice of lien shall identify the legal owner of record by name and address, the location of the real estate from which the facility was removed by the department, and the amount of the lien. The department shall send a copy of the notice of lien to the person identified in the notice at the address set forth in the notice by certified mail, return receipt requested, postage prepaid. There shall be no charge for filing the department's notice of lien. The fee for discharging the notice of lien shall be borne by the person identified in the notice of lien. The lien provided for by this section may be foreclosed in accordance with the provisions of law relating to foreclosure of mortgages on real estate upon violation of subparagraph I-a(b) of this section or upon transfer of title to the real estate.
(b) Installation or replacement of underground storage facilities or other petroleum storage facilities regulated under RSA 146-A or RSA 146-C which contain or are designed to contain gasoline or diesel product on real property subject to a lien under this section shall be prohibited until such lien is discharged.
II. Nothing in this chapter shall be construed to prevent the party strictly liable from instituting a legal action against any party responsible for causing the spillage for costs incurred by the strictly liable party in complying with this statute.
III. [Repealed.]
IV. 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. 1985, 287:3. 1987, 377:3, 5. 1988, 271:9, I. 1991, 92:7. 1996, 266:6. 1998, 357:2, eff. July 1, 1998.

Section 146-A:3-b

146-A:3-b Repealed by 1986, 182:4, II, eff. May 28, 1986. –

Section 146-A:3-c

146-A:3-c Limited Liability for Holders. –
I. A holder who has not assumed ownership of a facility or vessel by the act of taking title by foreclosure or by other similar means and who has not assumed responsibility for the operation of the facility or vessel shall not be liable under RSA 146-A:3-a.
II. (a) A holder who has assumed ownership of a facility or vessel by the mere act of taking title by foreclosure or other similar means or who has assumed responsibility for the operation of a facility or vessel shall be liable under RSA 146-A:3-a unless the holder fulfills the following conditions in which case its liability shall be limited in accordance with subparagraph (b):
(1) The holder reports to the department any known or suspected discharge or spillage of oil from the facility or vessel;
(2) The holder undertakes emergency response measures to stop an ongoing discharge, prevent further discharge of oil, and address any imminent health hazard created by the discharge or spillage;
(3) The holder secures the facility or vessel as necessary to prevent exposure to oil by fencing or otherwise limiting access;
(4) The holder conducts all actions required under this subparagraph and all other response actions or corrective measures, including those voluntarily assumed, in accordance with the department of environmental service's rules; and
(5) The holder provides the department, its employees and authorized representatives with access to the facility or vessel for inspection, testing, response and remedial activity and any other purposes authorized under this chapter.
(b) A holder who has complied with the conditions of subparagraph (a) shall not be liable under RSA 146-A:3-a unless such holder or its employees cause any discharge or spillage of oil, in which case the holder shall be liable for the lesser of:
(1) Actual damages caused by the holder or its employees;
(2) The value of the secured property as determined by a method acceptable to both the state and the holder, until otherwise specified by rules of the department of environmental services; or
(3) The amount of the outstanding indebtedness secured by the facility or vessel.
III. Nothing in this section shall preclude or limit claims under RSA 146-A:3-a against non-employee agents or independent contractors retained by a holder.
IV. Nothing in this section shall preclude or limit claims to recover costs under RSA 146-A:3-a against a holder whose negligent acts or omissions or intentional misconduct has caused the discharge or spillage of oil. A holder as described in paragraph I or a holder who fulfills the conditions of subparagraph II(a) shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as such holder has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.

Source. 1993, 323:4. 1996, 228:106, eff. July 1, 1996.

Section 146-A:3-d

146-A:3-d Limited Liability for Fiduciaries. –
I. A fiduciary shall not be liable in its individual capacity under RSA 146-A:3-a.
II. Nothing in this section shall preclude claims under RSA 146-A:3-a against:
(a) A fiduciary in its representative capacity;
(b) The assets of the estate or trust administered by a fiduciary; or
(c) Non-employee agents or independent contractors retained by a fiduciary.
III. Nothing in this section shall preclude claims to recover costs under RSA 146-A:3-a against a fiduciary in its individual capacity whose negligent acts or omissions or intentional misconduct has caused the discharge or spillage of oil. 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.

Source. 1993, 323:4, eff. Aug. 22, 1993.

Section 146-A:3-e

146-A:3-e Duty to Report. – Nothing in RSA 146-A:3-c or 146-A:3-d shall be construed to relieve a holder or fiduciary from any legal duty requiring a report, notification or disclosure of an oil discharge otherwise established under New Hampshire law.

Source. 1993, 323:4, eff. Aug. 22, 1993.

Section 146-A:3-f

146-A:3-f Spill Response Plan. –
I. Oil pipeline facility owners shall submit a spill response plan to the department that provides spill protection equivalent to or greater than a facility response plan under 49 C.F.R. section 194.101. A person who has contracted with an oil pipeline facility to provide containment and cleanup services may submit the spill response plan, on behalf of the owner, for any oil pipeline facility for which the person is contractually obligated to provide services.
II. Response plans shall, at a minimum, include the following:
(a) The number, training preparedness, and fitness of all dedicated personnel assigned to direct and implement the plan;
(b) Arrangements for the positioning of oil spill containment, cleanup equipment, and trained personnel at strategic locations from which they can be deployed to the spill site to promptly and properly remove the spilled oil; and
(c) The amount and type of equipment available to respond to a spill, where the equipment is located, and the extent to which other contingency plans rely on the same equipment.
III. Spill response plans for oil pipeline facilities shall be submitted to the department within 6 months after the department has adopted rules under this section.
IV. The department shall approve a spill response plan for an oil pipeline facility only if it determines that the plan meets the requirements set forth in this section and rules adopted by the department.
V. Upon approval of a spill response plan for an oil pipeline facility, the department shall provide to the person submitting the plan a statement indicating that the plan has been approved, the oil pipeline facilities covered by the plan, and any other information the department determines should be included.
VI. An owner or operator of an oil pipeline facility shall notify the department in writing immediately of any significant change of which it is aware affecting its spill response plan, including changes in any factor set forth in this section or in rules adopted by the department. The department may require the owner or operator to update a spill response plan as a result of such changes.
VII. The department by rule shall require spill response plans to be reviewed, updated, if necessary, and resubmitted to the department at least once every 5 years.
VIII. Approval of a spill response plan by the department shall not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under this chapter or any other state law.

Source. 2014, 137:4, eff. June 16, 2014; 303:6, eff. June 16, 2014 at 12:01 a.m.

Section 146-A:4

146-A:4 Notification; Removal. –
I. Whenever an oil discharge or spillage occurs which may pollute or which has polluted the surface water or groundwater of this state, the department of environmental services shall be notified immediately and shall assume primary jurisdiction of the cleanup operation. In the interim period before the department of environmental services has had an opportunity to assume jurisdiction, the person or persons strictly liable for an oil discharge shall undertake immediate measures to minimize the extent of pollution and damage which said discharge would otherwise cause. Any unexplained oil discharge shall be removed by or under the direction of the department of environmental services.
II. Any person strictly liable for an oil discharge shall immediately undertake to contain or remove such discharge to the department's satisfaction.
III. Notwithstanding paragraph II, the department of environmental services may undertake the containment or removal of such discharge and may retain agents and contractors for such purposes who shall operate under the direction of the department of environmental services.

Source. 1971, 266:1. 1985, 287:4; 401:1. 1986, 202:6, I(a). 1991, 92:8. 1996, 228:25, 106, 108, eff. July 1, 1996.

Section 146-A:5

146-A:5 Duty to Report. –
I. Whoever is responsible for the operation of any oil facility, carrier, or vessel that discharges oil in violation of this chapter shall immediately notify the department of environmental services or its designee. Any person who fails to give such notice shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person. Each day of a continuing violation shall constitute a separate offense.
II. Any person who becomes aware of an oil discharge in violation of this chapter shall immediately notify the department of environmental services.

Source. 1971, 266:1. 1973, 529:19. 1986, 202:6, I(a). 1991, 92:9. 1996, 228:108, eff. July 1, 1996.

Section 146-A:6

146-A:6 State and Local Officials. – All law enforcement officers and fire officials on the advice of the department or the department's authorized agent may assist in any oil spillage cleanup operation and may receive its support and guidance when engaged in such assistance.

Source. 1971, 266:1. 1986, 202:6, I(a). 1996, 228:109, eff. July 1, 1996.

Section 146-A:7

146-A:7 Private Participation. –
I. Notwithstanding any other provision of law or rule to the contrary, no oil spill cleanup organization or other person acting to contain, remove, clean up, restore or take other remedial or corrective action or measures with regard to the spillage or discharge of oil, or threatened spillage or discharge of oil, shall be liable for removal costs, penalties, fines or damages of any kind, including but not limited to, natural resources damages or civil damages to government or private parties, unless it is determined that their acts or omissions amounted to gross negligence or willful misconduct, provided that:
(a) The oil spill cleanup organization or other person was rendering care, assistance or advice, consistent with the National Contingency Plan or as otherwise directed by the Federal On-Scene Coordinator; or
(b) The oil spill cleanup organization or other person was acting upon the request of the department, or its designee, and pursuant to the department's response procedures.
II. The immunity provided by this section shall not apply to any person who, without regard to fault, directly or indirectly caused or suffered the spillage or discharge of oil, or threatened spillage or discharge of oil at issue, which required the initial containment, removal, cleanup, restoration or other remedial or corrective action or measures, and provided that any such person shall be strictly liable for any removal costs, penalties, fines and damages of any kind, that another person is relieved of responsibility for under paragraph I.

Source. 1971, 266:1. 1986, 202:6, I(a). 1991, 92:10. 1996, 228:109, eff. July 1, 1996.

Section 146-A:8

146-A:8 Repealed by 1991, 92:45, I, eff. May 13, 1991. –

Section 146-A:9

146-A:9 Recovery by State. – The attorney general shall institute such legal or equitable action as he deems necessary to recover or obtain judgment for the costs of containment, cleanup, removal, corrective measures or civil penalties. This action may be brought in conjunction with an action for injunctive relief or in a separate action in superior court. In connection with an action brought under this section, the attorney general may obtain a prejudgment attachment.

Source. 1971, 266:1. 1985, 287:5. 1991, 92:11, eff. May 13, 1991.

Section 146-A:10

146-A:10 Tort Liability to Third Persons. – Any person who negligently or intentionally discharges or spills oil into or on the waters of any lake, pond, river, stream, or into tidal waters or into the groundwater of the state which causes damage to the property of another shall be liable in tort to the person whose property is so damaged in the amount of 1-1/2 times the damages sustained by that person.

Source. 1971, 266:1. 1987, 377:7. 1991, 92:12. 1998, 357:4, eff. July 1, 1998.

Section 146-A:11

146-A:11 Personnel. – The department of environmental services shall establish and maintain at ports within the state, and other places as it shall determine, such employees and equipment as in its judgment may be necessary to carry out RSA 146-A. Inspection and enforcement employees of the department of environmental services in their line of duty pursuant to RSA 146-A shall have the powers of a constable under RSA 104:9.

Source. 1971, 266:1. 1979, 463:1. 1981, 119:2; 219:1. 1983, 306:1; 393:10. 1985, 401:2. 1986, 202:6, I(a). 1991, 92:13. 1996, 228:108, eff. July 1, 1996.

Section 146-A:11-a

146-A:11-a Oil Pollution Control Fund. –
I. There is hereby established the New Hampshire oil pollution control fund. This nonlapsing, revolving fund shall, at a minimum, pay the salaries and expenses of the persons specified in RSA 146-A:11, except as the legislature may otherwise determine, as well as the costs to implement the provisions of RSA 146-A which include, but are not limited to, the salaries and expenses of additional personnel to the extent that such salaries and expenses are incurred in implementing the provisions of this chapter, and the other costs of containment or removal or corrective measures deemed necessary by the department of environmental services as a result of an actual or potential oil discharge into or onto the surface water or groundwater of the state. Moneys from the fund shall be used to mitigate the adverse effects of oil discharges including, but not limited to, provision of emergency water supplies to persons affected by such pollution, and, where necessary as determined by the department of environmental services, the establishment of an acceptable source of potable water to injured third parties. Not more than 10 percent of the moneys in the fund shall be allocated annually for research programs dedicated to the development and improvement of preventive and cleanup measures concerning such oil discharges. In the event of an oil discharge, the department of environmental services may expend, with the approval of governor and council, such additional sums as are necessary to clean up the discharge except that the total amount expended may not exceed the balance in the New Hampshire oil pollution control fund. Income derived from the oil pollution control fund shall only be used for those administrative costs needed to implement RSA 146-A and any other costs cited in this section.

[Paragraph II effective until July 1, 2025 at 12:01 a.m.; see also paragraph II set out below.]

[Paragraph II effective July 1, 2025 at 12:01 a.m.; see also paragraph II set out above.]

II. Moneys in the fund not currently needed to meet the obligations of the department of environmental services under this chapter shall be deposited with the state treasurer to the credit of said fund and may be invested as provided by law. Interest received on such investment shall also be credited to the fund. If the fund's balance becomes greater than $5,000,000, the license fees established in RSA 146-A:11-b, II shall be discontinued and only re-established when the fund's balance is 20 percent below the $5,000,000 balance.
III. Corrective measures authorized by this chapter shall include but not be limited to:
(a) Provision of interim water supplies to residents whose water supplies have been contaminated due to an oil discharge;
(b) Where necessary, as determined by the department of environmental services, the establishment of an acceptable source of potable water to injured third parties;
(c) Damage mitigation and prevention procedures established pursuant to RSA 146-A:11-c, V-a;
(d) Cleanup of pollution caused by spillage or discharge of oil;
(e) [Repealed.]
(f) Removal of underground storage facilities or other petroleum storage facilities which are not in compliance with the requirements of RSA 146-A or RSA 146-C.
IV. [Repealed.]
V. [Repealed.]
VI. All funds paid to the state to reimburse costs paid out of the oil pollution control fund by any person strictly liable to the state under RSA 146-A:3-a and 146-C:11 shall be placed in the oil pollution control fund.

Source. 1985, 287:6. 1986, 202:6, I(a). 1987, 377:2. 1988, 271:4, 9, II, III. 1990, 196:1. 1991, 92:14-16, 45, II. 1993, 54:1. 1996, 228:108. 1998, 357:1, eff. July 1, 1998. 2014, 137:2, eff. June 16, 2014. 2015, 142:2, eff. July 1, 2015; 142:3, eff. July 1, 2025 at 12:01 a.m.

Section 146-A:11-b

146-A:11-b License Required. –
I. Under this section, the following terms shall be construed as follows:
(a) "Person" means any operator, distributor, dealer, or broker who, or any wholesale terminal facility which, imports or causes to be imported oil into the state. "Person" does not mean an oil spill cleanup organization or other person acting to contain, remove, cleanup, restore or take other remedial or corrective action or measures with regard to the spillage or discharge of oil or threatened spillage or discharge of oil.
(b) "Import" means, for the purpose of determining the license fees under this section, any import of oil into this state by any person whether by vessel, pipeline, truck, railroad or any other contrivance to the extent that the import of such oil has not been previously subject to the license fee under this section. Fueling or refueling of vessels employed in transfer operations shall not be included.
(c) "Oil" means petroleum products and their by-products including, but not limited to, crude, motor fuels, aviation fuels, and any oil used for heating, processing, or generating electricity. The term "oil" shall not include natural gas, liquified petroleum gas, or synthetic natural gas regardless of derivation or source.

[Paragraph II effective until July 1, 2025 at 12:01 a.m.; see also paragraph II set out below.]

II. Any person who imports or causes to be imported oil into the state, except those using oil pipelines, railroads, and highways to transport oil products between states other than New Hampshire or for international transport of oil products, shall be licensed by the department of safety under this chapter. The annual fee for the license shall be $0.01625 per gallon of on-road and off-road gasoline and diesel fuel, $0.01375 per gallon of fuel oil, diesel products, and used oil for on-premise heating, $0.04125 per gallon of motor oil and $.00125 per gallon of all other oil imported into this state. The fee shall be paid monthly by such person to the department of safety. The department of safety shall deposit the first $125,000 of fees paid in each fiscal year into the general fund. The remainder shall be deposited into the oil pollution control fund established under RSA 146-A:11-a, and the oil discharge and disposal cleanup established under RSA 146-D:3, I, based on an allocation determined for each fiscal year by the department of environmental services and the oil fund disbursement board. Imposition of the fee shall be based on the record of the person and certified as accurate to the department of safety.

[Paragraph II effective July 1, 2025 at 12:01 a.m.; see also paragraph II set out above.]

[Paragraph II-a repealed by 2015, 142:16, effective July 1, 2025 at 12:01 a.m.]

II-a. The collection of oil pollution license fees established in paragraph II shall be discontinued if the combined, un-obligated balance in the oil pollution control fund and oil discharge and disposal cleanup fund exceeds $5,000,000. Collection shall be reinstated upon determination of need for additional fees by the commissioner of the department of environmental services and the oil fund disbursement board.
III. Any person who imports or causes to be imported oil into the state and who is licensed under this chapter may seek, and shall receive for valid claims, an import credit for oil which the person transfers out of state during any reporting period.

[Paragraph IV effective until July 1, 2025 at 12:01 a.m.; see also paragraph IV set out below.]

IV. Every person who imports or causes to be imported oil shall file a monthly report for the preceding month and shall include all fees due for that reporting period with the department of safety on or before the twentieth day of the following calendar month. Failure to file by the required date or to enclose fees due shall result in the assessment of a 10 percent penalty to be added to the amount of fees due for that month. If no fees are due, a penalty of $1 per day shall be assessed. Said penalty shall immediately accrue and thereafter the overdue fees and the penalty shall bear interest at the rate established by the commissioner of safety under RSA 260:40-a. Penalties and interest collected shall be deposited into the oil pollution control fund and oil discharge and disposal cleanup fund based on an allocation determined for each fiscal year by the commissioner of the department of environmental services and the oil fund disbursement board. The board, in consultation with the department may waive all or any portion of penalties or interest for good cause.

[Paragraph IV effective July 1, 2025 at 12:01 a.m.; see also paragraph IV set out above.]

IV. Every person who imports or causes to be imported oil shall file a monthly report for the preceding month and shall include all fees due for that reporting period with the department of safety on or before the twentieth day of the following calendar month. Failure to file by the required date or to enclose fees due shall result in the assessment of a 10 percent penalty to be added to the amount of fees due for that month. If no fees are due, a penalty of $1 per day shall be assessed. Said penalty shall immediately accrue and thereafter the overdue fees and the penalty shall bear interest at the rate established by the commissioner of safety under RSA 260:40-a. The department may waive all or any portion of penalties or interest for good cause.
V. Unless otherwise provided, any person who violates any provision of this section shall be guilty of a misdemeanor if a natural person or guilty of a felony if any other person.

Source. 1985, 287:6. 1986, 202:6, I(a). 1987, 377:11, 13. 1988, 271:5. 1989, 230:1-5. 1990, 3:97, 98. 1991, 322:5, 6. 1993, 171:1. 1994, 364:9. 1996, 228:106, 108. 2003, 187:3, 4, eff. July 1, 2003. 2014, 137:3, eff. June 16, 2014. 2015, 142:4, 6, 7, eff. July 1, 2015; 142:5, 8, 16, eff. July 1, 2025 at 12:01 a.m.

Section 146-A:11-c

146-A:11-c Rulemaking. –
The commissioner shall adopt rules under RSA 541-A, after public hearing, relative to:
I. Operation and inspection of oil terminal facilities, including equipment related to the operation of oil terminal facilities.
I-a. Requirements for facility owners to prepare, submit, and comply with a spill prevention, control, and countermeasure (SPCC) plan prepared in accordance with 40 C.F.R. part 112, provided that no such rules shall require the owner of a qualified facility, as defined in RSA 146-A:2, XIV, to engage a professional engineer to prepare or approve the SPCC plan for that facility.
I-b. Requirements for oil pipeline facility spill response plans under RSA 146-A:3-f.
II. Operation and inspection of vessels, including railway carriers.
III. Methods for the prevention of oil discharges into or onto the surface water or groundwater of the state, including rules for expenditures on research programs under RSA 146-A:11-a, I.
IV. Procedures for reporting actual or potential oil discharges under RSA 146-A:5.
V. Procedures and equipment to be used in the removal or containment of oil under RSA 146-A:4.
V-a. Procedures for mitigation and prevention of damage due to oil leakage or spillage.
V-b. [Repealed.]
VI. The establishment of control regions and rules to meet each region's particular requirements.
VII. [Repealed.]
VIII. Bonding under RSA 146-A:13.
VIII-a. The exemptions and liability limitations for holders and fiduciaries.
IX, X. [Repealed.]
XI. [Repealed.]
XII. [Repealed.]
XIII. [Repealed.]
XIV. [Repealed.]

Source. 1985, 287:6. 1986, 182:4, III; 202:6, I(a). 1987, 377:8, 10. 1988, 271:9, IV-VI. 1989, 230:6. 1991, 92:17, 18, 45, III. 1993, 171:5; 323:5. 1996, 228:110, eff. July 1, 1996. 2012, 147:6, eff. July 1, 2012. 2014, 137:5, eff. June 16, 2014.

Section 146-A:12

146-A:12 Emergency Proclamation; Governor's Powers. –
Whenever any disaster or catastrophe exists or appears imminent arising from the discharge of oil, petroleum products or their by-products, the governor shall by proclamation declare the fact and that an emergency exists in any or all sections of the state. If the governor is temporarily absent from the state or is otherwise unavailable, the next person in the state who would act as governor if the office of governor were vacant shall, by proclamation, declare the fact and that an emergency exists in any or all sections of the state. A copy of such proclamation shall be filed with the secretary of state. The governor shall have general direction and control of the department of environmental services and shall be responsible for carrying out the purposes of this chapter.
I. In performing his duties under this chapter, the governor is authorized and directed to cooperate with all departments and agencies of the federal government, with the offices and agencies of other states and foreign countries, and the political subdivisions thereof, and with private agencies in all matters pertaining to a disaster or catastrophe.
II. In performing his duties under this chapter, the governor is further authorized and empowered:
(a) To make, amend and rescind the necessary orders, rules and regulations to carry out this chapter within the limits of the authority conferred upon him and not inconsistent with the rules, regulations and directives of the President of the United States or of any federal department or agency having specifically authorized emergency functions.
(b) To delegate any authority vested in him under this chapter and to provide for the subdelegation of any such authority.
III. Whenever the governor is satisfied that an emergency no longer exists, he shall terminate the proclamation by another proclamation affecting the sections of the state covered by the original proclamation, or any part thereof. Said proclamation shall be published in such newspapers of the state and posted in such places as the governor, or the person acting in that capacity, deems appropriate.
IV. The provisions of RSA 4:45, RSA 4:46, and RSA 21-P:34 through RSA 21-P:48 as they shall apply to the taking of private property, compensation and use, mutual aid, immunity, aid in emergency, enforcement and compensation shall apply to disasters or catastrophes proclaimed by the governor under this chapter.

Source. 1971, 266:1. 1986, 202:6, I(a). 1991, 92:19. 1996, 228:108. 2002, 257:9, eff. July 1, 2002.

Section 146-A:13

146-A:13 Bonding. – The commissioner may set a schedule of bonding to be required from oil, gas and petroleum product suppliers, dealers and others that are under the jurisdiction of this chapter to provide for emergency cleanup and provide for the protection of the environment from accidental intrusions and from purposeful evasion of rules adopted under this chapter.

Source. 1971, 266:1. 1985, 401:4. 1986, 202:6, I(a). 1989, 339:16. 1996, 228:110, eff. July 1, 1996.

Section 146-A:14

146-A:14 Penalty. –
I. Any person who recklessly discharges or spills oil into or onto the surface water or groundwater of the state or in a land area where the oil will ultimately seep into such waters or any person who recklessly violates any provision of this chapter or any rule adopted under the provisions of this chapter shall be guilty of a misdemeanor if a natural person or guilty of a felony if any other person. Each day of a continuing violation shall constitute a separate offense.
II. Any person who purposely or knowingly discharges or spills oil into or onto the surface water or groundwater of the state or in a land area where the oil will ultimately seep into such waters or any person who purposely or knowingly violates any provision of this chapter or any rule adopted under the provisions of this chapter shall be guilty of a class B felony. Each day of a continuing violation shall constitute a separate offense.
II-a. Any person who discharges or spills oil into or onto the surface water or groundwater of the state or in a land area where the oil will ultimately seep into such waters or any person who violates any provision of this chapter or any rule adopted under the provisions of this chapter shall be subject to a civil penalty not to exceed $20,000 for each violation. Each day of a continuing violation shall count as a separate violation. Civil penalties for violation of any rule adopted under the provisions of this chapter shall not accrue until the department provides notification of such violation. The attorney general may bring an action for injunctive relief, including a mandatory injunction.
III. [Repealed.]

Source. 1971, 266:1. 1973, 528:56. 1979, 463:2. 1985, 287:8. 1986, 182:4, IV. 1991, 92:20. 1998, 316:1, eff. Jan. 1, 1999. 2009, 106:1, eff. Jan. 1, 2010. 2019, 263:5, eff. Jan. 1, 2020.

Section 146-A:15

146-A:15 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 $4,000 for each offense upon any person who violates any provision of this chapter including any rule adopted under the provisions of this chapter or any order or permit issued under this chapter. Each day of the violation shall constitute a separate offense. 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 section for violations as provided in paragraph I.
(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 oil pollution control fund established under this chapter.

Source. 1989, 230:7. 1995, 217:2, eff. Jan. 1, 1996. 2019, 263:6, eff. Jan. 1, 2020.

Section 146-A:16

146-A:16 Orders; Injunctions. –
I. The department is authorized to issue an administrative order directing any person to cease activity violating this chapter or any rule adopted under the provisions of this chapter, to take action necessary to comply with this chapter or any rule adopted under the provisions of this chapter, or to institute corrective or remedial measures in response to the spillage or discharge of oil or any other violations of this chapter or rules adopted under the provisions of this chapter.
II. Notwithstanding any other provision of this chapter, the department, upon receipt of information that the spillage of oil may present an imminent and substantial hazard to human health or the environment, may take the following action:
(a) Issue a cease and desist order against any person responsible for the spillage or discharge of oil;
(b) Order the oil facility owner or operator, or any other person responsible for the spillage or discharge of oil, to take action reasonably required to contain or remove the spillage; and
(c) Request the attorney general to bring an action for injunctive relief, including a mandatory injunction.
III. Appeal of an order issued under this section shall be to the waste management council established in RSA 21-O:9 and in accordance with RSA 21-O:14. Orders of the department issued upon a finding of an imminent and substantial hazard may be appealed, but shall be immediately effective. The effective date of any other order which is appealed shall be the date of the council's affirmance of the order. Appeal of the council's affirmance shall not stay or suspend the effectiveness of the order unless the supreme court grants a stay of the order. The attorney general may bring an action for injunctive relief, including a mandatory injunction, to obtain compliance with or enforcement of the order.

Source. 1991, 92:21. 1996, 228:106. 1998, 316:2, eff. Jan. 1, 1999. 2016, 23:1, eff. Apr. 25, 2016.

Section 146-A:17

146-A:17 Willful Failure to Comply. – Any person who is determined to be strictly liable for discharge or spillage of oil and who willfully fails to comply with a department order requiring investigation, containment, cleanup, removal, remedial measures, or corrective measures, shall be liable to the state in double the amount of cost recoverable funds expended by the state in undertaking investigative, remedial, or corrective action.

Source. 1991, 92:21. 1996, 228:106, eff. July 1, 1996.

Section 146-A:18

146-A:18 Severability. – 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 applications, and to this end the provisions of this chapter are severable.

Source. 2014, 137:6, eff. June 16, 2014.

Section 146-A:19

146-A:19 Elimination of Gasoline Ethers and Tertiary Butyl Alcohol from Gasoline Supplies. –
I. No person, as defined in RSA 146-A:2, VI, shall sell, deliver for sale, import, or cause to be imported into the state for sale any neat gasoline ethers or gasoline containing MtBE, other gasoline ethers, or tertiary butyl alcohol (TBA) in quantities greater than 1/2 of one percent by volume. Nothing in this section shall be interpreted to prohibit the transshipment of MtBE, other gasoline ethers, or TBA content fuel through the state for disposition outside of the state including storage coincident to such shipment.
II. Any person who violates paragraph I shall be subject to administrative fines not to exceed $2,000 for each violation issued by the department of environmental services and civil penalties not to exceed $60,000 for each violation. Each day of a continuing violation shall constitute a separate violation. In addition to civil penalties, the attorney general may institute such legal or equitable action as he or she deems necessary, including an action for injunctive relief.

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

TITLE XPUBLIC HEALTH

Chapter 146-AOIL DISCHARGE OR SPILLAGE IN SURFACE WATER OR GROUNDWATER