147-B:10 Strict Liability; Civil Action. –
I. Subject only to the defenses set forth in RSA 147-B:10-a and the exclusions and limitations set forth in RSA 147-B:10, IV and V, any person who:
(a) Owns or operates a facility;
(b) Owned or operated a facility at the time hazardous waste or hazardous materials were disposed there;
(c) By contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, to any facility of hazardous waste or hazardous materials owned, possessed or controlled by such person; or
(d) Accepts or accepted any hazardous waste or hazardous material for transport to disposal or treatment facilities or sites selected by such person,
shall be strictly liable for all costs incurred by the state in responding to a release or threatened release of hazardous waste or hazardous material at or from the facility as specified in paragraph II.
I-a. Government entities, including their employees, shall not be liable for the release of hazardous waste during the lawful transportation of locally collected household hazardous waste over the byways of the state, to regional hazardous waste collection centers or in-state or out-of-state disposal facilities in the absence of willful, wanton or reckless conduct.
II. Costs recoverable by the state under paragraph I shall include all costs relating to:
(a) Containment of the hazardous wastes or hazardous materials.
(b) Necessary cleanup and restoration of the site and the surrounding environment.
(c) Removal of the hazardous wastes or hazardous materials.
(d) Such actions as may be necessary to monitor, assess and evaluate the release or threat of release of a hazardous waste or hazardous material; or to mitigate damage to the public health or welfare that may otherwise result from a release or threat of release.
III. (a) The attorney general may institute an action before the superior court for the county in which the facility is located against any person liable pursuant to paragraph I of this section to recover all costs incurred by the state. Costs recovered under this section shall be deposited into the fund except that costs recovered to offset expenditures made from the drinking water and groundwater trust fund established in RSA 6-D:1 shall be deposited into the drinking water and groundwater trust fund.
(b) Notwithstanding the rights of the state under subparagraph (a) above, any person who has expended funds to remedy environmental damage may also bring an action in the superior court for the county in which the facility is located against any person who may be liable for such damage pursuant to paragraph I of this section. Such person's right to contribution shall be limited to expenditures which are incurred for the purposes described in paragraph II of this section and which are consistent with the laws and rules of the state of New Hampshire. A person's right to recovery under this section shall not be barred by the fact that the party bringing the action is itself liable to the state under this section.
IV. Notwithstanding paragraph I, the liability of a holder, when acting as a holder, shall be determined as follows:
(a) A qualifying holder shall not be liable to the state or any other person under paragraph I.
(b) A holder who is not a qualifying holder shall be liable under paragraph I; however, the liability of a holder who demonstrates that its acts or omissions have not caused the release of hazardous waste or materials at a facility shall be limited to the lesser of:
(1) The value of the secured property as determined by a method acceptable to both the state and the holder, until otherwise specified by rules of the department of environmental services; or
(2) The amount of the outstanding indebtedness secured by the facility.
(c) Nothing in this section shall preclude or limit claims under paragraph I against non-employee agents or independent contractors retained by a holder.
(d) Nothing in this section shall preclude or limit claims to recover costs under this section against a qualifying holder whose negligent acts or omissions or intentional misconduct has caused the release of hazardous waste or materials at a facility. A qualifying holder shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as the qualifying holder has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.
V. Notwithstanding paragraph I, the liability of a fiduciary, when acting as a fiduciary, shall be determined in accordance with the following:
(a) A fiduciary shall not be liable in its individual capacity to the state or any other person under paragraph I.
(b) Nothing in this section shall preclude claims under paragraph I against:
(1) A fiduciary in its representative capacity;
(2) The assets of the estate or trust administered by the fiduciary; or
(3) Non-employee agents or independent contractors retained by a fiduciary.
(c) Notwithstanding this section, nothing shall preclude claims to recover costs under this section against a fiduciary in its individual capacity whose negligent acts or omissions or intentional misconduct has caused the release of hazardous waste or materials at a facility. A fiduciary shall not be attributed with the negligence or intentional misconduct of non-employee agents or independent contractors so long as the fiduciary has conducted itself without fault with regard to its relationship with such non-employee agents or independent contractors.
VI. Nothing in this section shall be construed to relieve a holder or fiduciary from any legal duty requiring a report, notification or disclosure of a release of hazardous waste or materials otherwise established under New Hampshire law.
VII. There shall be no implied cause of action for third party damages against any person under this section to the extent that the person's liability under this section is based solely on the person's ownership of a facility.