146-C:11-a Limited Liability for Holders. –
I. A holder who has not assumed ownership of a facility or facility site by the act of taking title by foreclosure or by other similar means and who has not assumed responsibility for the care, custody or control of a facility or facility site shall not be considered an owner or operator under this chapter and shall not be liable under RSA 146-C:11.
II. (a) A holder who has assumed ownership of a facility or facility site by the mere act of taking title by foreclosure or other similar means or who has assumed responsibility for the care, custody or control of a facility or facility site shall be liable under RSA 146-C:11 unless the holder fulfills the following conditions in which case its liability shall be limited in accordance with subparagraph (b):
(1) The holder notifies the department of the facility if the holder knows or has reason to know of its existence and the facility is not registered;
(2) The holder reports to the department any known or suspected discharge or disposal of oil or hazardous substance from the facility;
(3) The holder assesses the facility's compliance with department of environmental services rules adopted under the authority of RSA 146-C and provides the department with the results of the assessment;
(4) The holder undertakes emergency response measures to stop an ongoing discharge or disposal of oil or hazardous substance, prevent further disposal, and address any imminent health hazard created by the disposal;
(5) The holder secures the facility or site as necessary to prevent exposure to oil or hazardous substances by fencing or otherwise limiting access;
(6) The holder conducts all actions required under this subparagraph and all other cleanup actions or corrective measures, including those voluntarily assumed, in accordance with the department of environmental service's rules; and
(7) The holder provides the department, its employees and authorized representatives with access to the facility or site for inspection, testing, containment, removal and cleanup activity and any other purposes authorized under this chapter.
(b) A holder who has complied with the conditions of subparagraph (a) shall not be considered an owner or operator under this chapter and shall not be liable under RSA 146-C:11 unless such holder or its employees cause any disposal of oil or hazardous substance, in which case the holder shall be liable for the lesser of:
(1) Actual damages caused by the holder or its employees;
(2) The value of the secured property as determined by a method acceptable to both the state and the holder, until otherwise specified by rules of the department of environmental services; or
(3) The amount of the outstanding indebtedness secured by the facility or site.
III. A holder that assumes primary responsibility for the business operations of a facility or facility site shall be deemed an operator under this chapter. Such holder shall not be strictly liable under RSA 146-C:11 for discharges or disposals commencing before the holder first conducts or manages the business operations of the facility if the holder has fulfilled the conditions of subparagraph II(a).
IV. Nothing in this section shall preclude or limit claims under RSA 146-C:11 against non-employee agents or independent contractors retained by a holder.
V. Nothing in this section shall preclude or limit claims for costs under RSA 146-C:11 against a holder whose negligent acts or omissions or intentional misconduct has caused the discharge or disposal of oil or hazardous substances. A holder as described in paragraph I or a holder who fulfills the conditions of subparagraph II(a) shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as such holder has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.
Source. 1993, 323:9. 1996, 228:106, eff. July 1, 1996.