TITLE X
PUBLIC HEALTH

Chapter 147-F
BROWNFIELDS PROGRAM

Section 147-F:1

    147-F:1 Findings and Purpose. –
I. The general court finds that it is in the public interest to encourage the redevelopment of industrial, commercial, residential and other properties that have been subject to environmental contamination. The strict liability imposed on owners and operators of contaminated property under existing environmental statutes has had the unintended result of discouraging the repurchase and reuse of some contaminated properties. These properties, often referred to as brownfields, are therefore frequently abandoned or underused. The general court also finds that it is appropriate to consider the risk posed by the contamination to human health and the environment in light of enforceable restrictions on the future use of the property when establishing cleanup goals for a contaminated property.
II. The purpose of this chapter is to give incentives to parties interested in the redevelopment of contaminated properties by facilitating the remedial process and by providing comprehensive liability protection to parties who assume responsibility for property remediation without preexisting liability for cleanup or whose existing liability is premised solely upon their status as an owner under strict liability statutes.
III. It is the further intent of this chapter to expedite the voluntary cleanup of all contaminated properties by application of the remedial process and approach provided herein where the contaminated property or party conducting the remediation does not qualify for comprehensive liability protection.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:2

    147-F:2 Establishment of Program. – An environmental cleanup program is hereby established to further the redevelopment of contaminated properties. The cleanup program shall be administered by the department. The department of health and human services shall assist the department as necessary by the review of risk assessments for properties for which the department determines that risk assessments shall be conducted. The department of justice shall issue covenants to eligible persons in accordance with RSA 147-F:6.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:3

    147-F:3 Definitions. –
In this chapter, the following words shall have the following meanings, unless the context otherwise requires:
I. The definitions of terms provided in RSA 147-B:2 shall be applicable to this chapter to the extent those terms are used in this chapter unless otherwise defined herein.
II. "Brownfields" means properties which have been environmentally contaminated, subject to the limitations of RSA 147-F:4, II.
III. "Contaminant" or "Contamination" means hazardous waste, hazardous materials (without regard to whether transported in commerce), or oil, as defined in RSA 146-A:2, III.
IV. "Department" means department of environmental services.
V. "Eligible person" means a person who meets the criteria under RSA 147-F:4, I, and who qualifies for a covenant not to sue.
VI. "Person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, limited liability company, municipality, commission, and the state or a political subdivision of the state.
VII. "Program" means the brownfields program established by this chapter.
VIII. "Program participant" means any person, whether or not eligible for the liability protections created by this chapter, who is approved by the department to use the remedial process prescribed by this chapter.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:4

    147-F:4 Eligibility for Program. –
I. A person is eligible to participate in the program if the person qualifies under one of the following categories:
(a) The person is not liable under RSA 147-B for any release or threatened release of a contaminant or contaminants at the property and is either:
(1) A prospective purchaser of eligible property; or
(2) A person who holds a mortgage interest or other security interest in eligible property, including a municipality with respect to property on which there are overdue real estate taxes due to the municipality.
(b) The person, including a municipality, is a current owner of eligible property whose liability under RSA 147-B is based solely on the person's status as owner and who did not cause or contribute to the contamination at the property.
II. Any environmentally contaminated property is eligible unless one of the following conditions applies:
(a) The property is not in compliance with any corrective action order issued under RSA 147-A or any other compliance order issued under a state or federal environmental program and the department determines that the property will not be brought into substantial compliance as a result of participation in the cleanup program.
(b) The property is eligible for cost reimbursement from the oil discharge and disposal cleanup fund, the fuel oil discharge cleanup fund or the motor oil discharge cleanup fund, unless it receives substantially less than full reimbursement from these funds.
III. A person seeking a determination of eligibility shall submit to the department a certificate signed under oath that includes all information the department of justice determines is necessary to verify eligibility.

Source. 1996, 241:2. 1997, 264:2, eff. June 19, 1997.

Section 147-F:5

    147-F:5 Available Relief. –
I. Any person who meets the eligibility conditions of RSA 147-F:4 may request the assistance of the department in overseeing the investigation and remediation of an eligible property. An eligible person shall be entitled to the liability protections provided in RSA 147-F:7 and shall receive a covenant not to sue issued in accordance with RSA 147-F:6 upon approval of a remedial action plan for the property.
II. A successor owner or successor owners of an eligible property may receive a covenant not to sue in accordance with the terms and conditions of RSA 147-F:17.
III. A holder of a mortgage or other security interest in the eligible property, including a municipality with a tax lien, shall notify the department in connection with a foreclosure or other acquisition or transfer of title or possession of an eligible property, of an intention to continue in the program on the same terms as the original eligible person, or may elect to retain the status of a holder of property in accordance with RSA 146-A:3-c, RSA 146-C:11-a, or RSA 147-B:10, as applicable.
III-a. A municipality that acquires an environmentally contaminated property by tax deed in order to convey the property to an eligible person in the brownfields program shall be entitled to the liability protection provided in RSA 147-F:7.
IV. A lessee or tenant (that itself would qualify as an eligible person) of the eligible property under agreement with an eligible person who is implementing an approved remedial action plan under the program shall not be subject to suit described in RSA 147-F:6, I, by the state for the contamination.
V. Any person who is not an eligible person may use the remedial process provided in RSA 147-F:11 through RSA 147-F:16 at the discretion of the department. The department may issue a no-action letter, certificate of partial cleanup, or certificate of completion to any such person upon completion of an approved remedial action plan for full or partial remediation.
VI. The relief afforded under this chapter extends only to liability or potential liability arising under state law. It is not intended to provide any relief as to liability or potential liability arising under federal law.

Source. 1996, 241:2. 1997, 264:3, eff. June 19, 1997.

Section 147-F:6

    147-F:6 Covenant Not to Sue. –
I. The covenant not to sue shall protect against liability for contamination addressed by an approved remedial action plan, including any modifications made pursuant to RSA 147-F:13, II.
II. The covenant shall be in a form approved by the department of justice and shall contain a general description of the property and the contamination, a summary of the approved remedial action plan and a detailed description of any use restrictions placed on the property, including their scope and purpose, and the possibility of additional or modified use restrictions imposed by the department in accordance with RSA 147-F:15, IV. The covenant shall be expressly conditioned upon the provisions of paragraphs III and IV of this section.
III. (a) The covenant shall be voidable if the holder of the covenant:
(1) Engages in activities at the property that are inconsistent or interfere with the approved remedial action plan;
(2) Withdraws from the program before completion of the remedial action plan and fails to stabilize the property in accordance with RSA 147-F:8;
(3) Violates any use restrictions imposed on the property by the department in accordance with RSA 147-F:15; or
(4) Fails to comply with program requirements under RSA 147-F:16.
(b) The holder of the covenant shall be given a reasonable opportunity to cure the noncompliance after notice by the department, except that any knowing violation of any use restriction shall void the covenant. Notwithstanding cure, the holder of the covenant shall be liable for the increased harm to human health and the environment caused by the noncompliance.
IV. The covenant shall be void if the holder of the covenant obtained a determination of eligibility under RSA 147-F:4 or any approval under this chapter by fraud or material misrepresentation, by knowingly failing to disclose material information, or by providing a false certification to the department.
V. If the covenant is voided under paragraph III or paragraph IV of this section, the holder shall be strictly liable under the provisions of RSA 146-A, RSA 146-C, RSA 147-A and RSA 147-B, as applicable.
VI. The covenant shall be appurtenant to the property as follows:
(a) Upon recordation with the certificate of completion issued in accordance with RSA 147-F:13, III, the covenant not to sue shall be appurtenant to, bind and run with the eligible property. The property deed and all subsequent instruments of conveyance relating to the eligible property shall reference, by book and page number, the covenant not to sue and the certificate of completion. Such deed and instruments shall also specify that the eligible property is subject to the restrictions contained in those documents.
(b) No provision of the covenant shall be deemed void by reason of the rule against perpetuity.
(c) The rule of property law known as the rule restricting unreasonable restraints on alienation shall not be applied to defeat, limit or modify any provision of the covenant not to sue restraining the use of or physical activity at the eligible property.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:7

    147-F:7 Liability Protection Before Covenant Issues. –
I. Site investigation and pre-remedial activities conducted at the property during participation in the program shall not trigger liability for remediation of preexisting contamination at the property solely because of the eligible person's status as owner or operator of the property under the strict liability provisions of RSA 146-A, RSA 146-C, RSA 147-A or RSA 147-B, as applicable.
II. An eligible person participating in the program shall not be liable for the remediation of additional contamination or increased environmental harm caused during site investigation or pre-remedial activities unless attributable to the eligible person's negligent or reckless conduct, except as provided in RSA 147-F:8, I(b).
III. An eligible person who withdraws from the program after site stabilization as provided in RSA 147-F:8 shall not be strictly liable as an owner under RSA 147-B:10 for preexisting contamination at the property that is known or foreseeable based upon information submitted to the department before withdrawal from the program unless the eligible person:
(a) Engages in activities at the property that are inconsistent or interfere with the approved remedial action plan;
(b) Violates any use restrictions imposed on the property by the department in accordance with RSA 147-F:15, and fails to cure after notice;
(c) Does not promptly report and address contamination caused or exacerbated by the holder's negligent or reckless acts during remedial activities as required by the department; or
(d) Fails to comply with the requirements of RSA 147-F:16, and fails to cure after notice.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:8

    147-F:8 Withdrawal From the Program. –
I. A program participant may withdraw from the program at any stage before or after approval of the remedial action plan. To withdraw from the program, the program participant must:
(a) File a notice of intent to withdraw with the department.
(b) Stabilize the site in accordance with a site stabilization plan approved by the department. Site stabilization is limited to those actions necessary to ensure that work conducted at the property has not caused greater risk to human health and the environment than existed before the remedial work was commenced, and to ensure that the property will not pose an imminent hazard to human health or the environment.
(c) Pay all outstanding fees accrued by the department in connection with the property's participation in the program, including fees associated with site stabilization.
II. Withdrawal from the program as provided in this section before completion of the approved remedial action plan shall not be considered inconsistent or interference with the approved remedial action plan and will not void the covenant.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:9

    147-F:9 Application for Participation in Covenant Not to Sue Program. –
I. Any person may submit an application to the department for a determination of that person's eligibility to obtain a covenant not to sue as part of that party's participation in the program administered under this chapter. The application for eligibility for a covenant not to sue shall be in the form and shall include all information the department requires in accordance with rules adopted under RSA 147-F:18.
II. A complete application for an eligibility determination for a covenant not to sue shall in substance consist of:
(a) The information required by the department's application form.
(b) A preliminary environmental assessment of the property, including a legal description of the property, its geologic and hydrologic characteristics, operational history, information about the nature and extent of contamination and its associated risk to human health and the environment, and any other information requested by the department regarding the property.
(c) A description of the proposed redevelopment and future use of the property.
(d) Any information necessary for the department to make a determination of eligibility in accordance with RSA 147-F:4.
(e) A non-refundable application fee of $750.
(f) A certificate under oath signed by the applicant that provides in substance that:
(1) The applicant and the property are eligible for the program and for a covenant not to sue.
(2) The applicant understands and has complied with the limitations and restrictions relative to the liability protection available under the program.
(3) The information in the application and environmental assessment is accurate and complete to the best of the applicant's knowledge.
(4) The concurrence of the property owner has been obtained, or the property owner's implied consent has been obtained by virtue of a mortgage or other written agreement signed by the owner, or, after a diligent search, the current owner or legal representative thereof could not be located.
(5) The applicant understands and acknowledges that the liability protection under this chapter, including a covenant not to sue, shall be forfeited if the applicant decides not to complete an approved remedial action plan and does not complete site stabilization measures pursuant to RSA 147-F:8; and acknowledges that it may be appropriate accordingly to establish a contingency or escrow fund to cover the costs of site stabilization measures.
III. The applicant shall provide the governing body of the municipality in which the property is located and adjacent property owners with notice of the application when submitted to the department, and shall provide the municipality with a complete copy of the application.
IV. The department shall review the application for completeness within 10 working days of receipt. The department shall promptly notify the applicant in writing if the application is incomplete. If the applicant fails to provide the necessary supplemental information within 30 days of such notification, the department may return the application to the applicant. Any subsequent reapplication shall require an additional application fee.

Source. 1996, 241:2, eff. July 1, 1996. 2007, 219:6, eff. July 1, 2007.

Section 147-F:10

    147-F:10 Eligibility Determination With Respect to Covenant Not to Sue. –
I. Within 30 days of receiving a complete application, the department shall make a determination of eligibility in accordance with RSA 147-F:4 after review and approval by the department of justice. The department shall send its written determination to the applicant and the municipality within which the property is located. If the department denies eligibility, it shall provide the applicant with a statement of the reasons therefor.
II. With notice of eligibility, the department shall provide the applicant with a tentative schedule for document submittal and department review of each subsequent stage of the remediation process provided under this chapter.
III. The applicant may request in writing that the commissioner of the department, in conjunction with the department of justice, review an eligibility denial. The commissioner shall issue a final decision, after review and approval by the department of justice. No appeal of the commissioner's final decision shall be available.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:11

    147-F:11 Site Investigation and Remedial Action Plan. –
I. Any person who is deemed eligible by the department for a covenant not to sue pursuant to RSA 147-F:4, and any other person who wishes to voluntarily undertake the investigation or remediation of a property and who obtains the concurrence of the department to do so, shall submit a work plan for a comprehensive site investigation to the department. The site investigation work plan shall be in the form and shall contain all information required by the department in accordance with rules adopted pursuant to RSA 147-F:18. The purpose of the site investigation is to gather sufficient information about the property and contamination to identify and justify a preliminary recommendation for remediation. The participant shall submit any additional information required by the department during its evaluation of the work plan, or the participant may withdraw from the program as provided in this chapter.
II. An initial program participation fee shall accompany the site investigation work plan in accordance with RSA 147-F:14, II. Upon submittal of a site investigation work plan and payment of the initial program participation fee, a person shall be considered a program participant.
III. In addition to the application and program participation fees, the program participant shall be responsible for all reasonable notice and hearing costs associated with property redevelopment under this chapter. The program participant shall reimburse the department for such costs upon written request.
IV. The department shall evaluate the site investigation work plan and shall either approve, approve with conditions or disapprove the work plan. If the department approves with conditions or disapproves, the program participant shall resubmit a revised work plan, or the participant may withdraw from the program as provided in this chapter.
V. Upon completion of the site investigation, the program participant shall submit a site investigation report, or the participant may withdraw from the program as provided in this chapter. The site investigation report shall be in the form and shall contain all information required by the department in accordance with rules adopted pursuant to RSA 147-F:18. The site investigation report shall at a minimum:
(a) Define the source, nature, concentration and extent, including geologic and hydrologic extent, of each contaminant present on or in the property.
(b) Define all known and possible pathways for contaminant migration.
(c) Identify all relevant sensitive receptors.
(d) Evaluate the current and long-term risk from contamination to human health and the environment.
(e) Provide a preliminary recommendation, with justification and consideration of alternative approaches where appropriate, for abatement, removal, remediation and monitoring activities at the property.
(f) Recommend a risk assessment to be conducted in a manner satisfactory to the department of health and human services and the department of environmental services if the proposed remedial approach does not require complete source removal.
VI. The department may approve the site investigation report, or may require revisions to the report, additional investigation under an amended work plan, or both, before approving the report. The participant shall conduct such additional site investigation work and make such revisions as are required by the department after the department's review of the report, or the participant may withdraw from the program as provided in this chapter.
VII. After approval of the site investigation report by the department, the program participant shall prepare a remedial action plan, unless the department determines that no further activity is required at the property. If the participant decides not to submit a remedial action plan in response to a department request for such a plan, the participant may withdraw from the program as provided in this chapter. A remedial action plan shall describe in detail a remedial strategy for the property that shall ensure protection of human health and the environment and shall:
(a) Address all elements required by department rules adopted pursuant to RSA 147-F:18.
(b) Address all sources of contamination, either by removal, containment or treatment.
(c) Ensure protection of the groundwater off-site, providing for off-site remediation, or at a minimum, a plan for continued monitoring of the groundwater while contamination remains.
(d) Describe the cleanup approach for each known contaminant during the active phase of remediation and at completion of the remedy by which performance standards will be met.
(e) Include a risk assessment, which is satisfactory to the department of health and human services and an environmental risk assessment satisfactory to the department of environmental services, that define the risk to human health and the environment where contaminant concentrations are to remain higher than established performance standards.
(f) Recommend use restrictions on the proposed and future uses of the property where necessary to protect human health and the environment and describe in detail how such restrictions will be imposed and maintained, including an analysis of the long-term feasibility of maintaining such use restrictions.
(g) Describe anticipated site stabilization measures for each phase of the remedial action, including cost estimates for achieving site stabilization if remedial work were to be stopped at the property before accomplishing all of the tasks specified in the approved remedial action plan.
VIII. After evaluation and consideration of public comments, if any, the department shall approve, approve with conditions or disapprove the remedial action plan. If the department approves with conditions or disapproves, the program participant shall submit a revised remedial action plan, or the participant may withdraw from the program as provided in this chapter.
IX. A program participant may elect to condense the submittal and review process described in this section after receiving a determination of eligibility or department approval to participate in the program. A program participant shall obtain the approval of the department for an alternative schedule of submissions. The department may require after-the-fact development of work plans, additional investigation, report supplementation, or resubmittal as necessary to obtain an approvable remedial action plan.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:12

    147-F:12 Approval of Remedial Action Plan. –
I. Upon receipt of a remedial action plan, the department shall provide public notice of the proposed remedial action. The notice shall provide a date for a public information meeting where there is significant environmental impact.
II. An approved remedial action plan shall provide for all removal, remedial, monitoring and other activities required to protect human health and the environment and to meet all applicable cleanup standards. The department's approval shall include a designation of the activities that must be completed before a certificate of completion will be issued in accordance with RSA 147-F:13, III.
III. The department may accept alternative risk-based cleanup standards based upon risk assessments developed pursuant to RSA 147-F:11, VII(e).
IV. The department may approve a remedial action plan for all, or a portion of, contamination at the property. The department shall impose such conditions on the redevelopment and use of the property as it finds necessary or proper to assure that the contamination on the site does not pose an unacceptable risk to human health and the environment during and after completion of the remedial action plan.
V. Upon approval of a remedial action plan:
(a) The department shall issue to the program participant a notice of approved remedial action plan that identifies the property, provides a general description of the contamination and summarizes the main components of the remedial action plan, including all specific restrictions on future use of the property.
(b) The department of justice shall issue a covenant not to sue to a program participant determined to be an eligible person pursuant to RSA 147-F:4. The covenant not to sue shall be in a form and subject to the conditions set forth in RSA 147-F:6.
VI. The program participant shall immediately record the notice of approved remedial action plan in the registry of deeds for the county in which the property is located.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:13

    147-F:13 Performance and Completion of Remedial Action. –
I. The program participant shall perform all activities required by the approved remedial action plan and shall provide the department with regular progress reports regarding the work.
II. The department may require amendment of the remedial action plan at any time during its performance as necessary to attain the cleanup levels established in the remedial action plan in light of the approved risk assessments.
III. Upon completion of the activities specified in the approved remedial action plan, a program participant shall file with the department a completion report in form and content satisfactory to the department. Once the department determines that the required activities have been completed according to the requirements of the approved remedial action plan, that monitoring requirements are being met, that any necessary use restrictions have been implemented, and that all fees and costs due under this chapter have been paid, the department shall issue to the program participant a certificate of completion, which shall certify that the work is completed and shall include a description of any use restrictions, monitoring requirements and any other conditions that remain in effect with respect to the property.
IV. Upon receipt of a notice of a certificate of completion, a program participant shall file the document with the related covenant not to sue in the registry of deeds for the county in which the property is located.
V. If at any time the department determines, including upon petition or request by a program participant, that no further investigation, remediation, or other activities are required, the department shall issue a certificate of no further action in a form suitable for recordation, which shall so state, and which shall include a description of any remaining required use restrictions or monitoring requirements, or a statement that there are no remaining use restrictions or monitoring requirements.
VI. Upon a determination by the department, in consultation with the department of health and human services where appropriate, that property use restrictions may be terminated or shall otherwise be modified pursuant to RSA 147-F:15, the department shall issue to the program participant, in a form suitable for recordation, a notice of such determination. The department shall ensure that all such notices are recorded promptly in the registry of deeds for the county in which the property is located, either by undertaking the recordation itself, or by requiring the program participant to do so.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:14

    147-F:14 Fee Schedule. –
I. Any person, except for the state and local governments, including school districts, who requests an eligibility determination under RSA 147-F:4 shall pay a nonrefundable application fee of $750 for program eligibility which shall be deposited in the hazardous waste cleanup fund. Any resubmittal of an incomplete application shall require an additional $500 for each resubmission.
II. Any eligible person, except for the state and local governments, including school districts, who has previously paid the initial application fee, or any person who becomes a program participant under RSA 147-F:5, V, shall pay a nonrefundable $4,500 fee which shall be deposited in the hazardous waste cleanup fund and used for purposes of the review work performed by the department under this chapter.
III. Any department costs exceeding the fee established in RSA 147-F:14, II, shall be charged bi-monthly to the program participant at hourly rates which include, but are not limited to, staff salaries, benefit costs, current operating expenses, legal and risk assessment review costs and travel. The hourly fees shall be deposited in the hazardous waste cleanup fund and used for the purposes of RSA 147-F.

Source. 1996, 241:2, eff. July 1, 1996. 2007, 219:7, eff. July 1, 2007.

Section 147-F:15

    147-F:15 Restrictions on Future Property Use. –
I. The department shall require the imposition of controls on the use of the property as necessary to protect human health and the environment during and after implementation of the remedial action plan.
II. The department may require the imposition or maintenance of some or all of the following controls or use restrictions without limiting state authority to implement other appropriate controls:
(a) Use limitations required by risk-based exposure criteria used in developing the remedial action plan.
(b) Prohibitions against physical changes to the property.
(c) Obligations to install and/or maintain protective barriers that control remaining sources of contamination.
(d) Necessary restrictions on groundwater use and requirements for the provision of alternative water supplies.
III. The department shall include all use restrictions imposed on the property in the notice of approved remedial action plan in accordance with RSA 147-F:12, V(a).
IV. The department may remove or modify use restrictions independently of the property owner by filing a release or modification of the restrictions in chain of title for the property. Any modification under this paragraph which would result in an increased restriction on the use of the property shall be based on a determination by the department that such a modification is necessary to protect human health or the environment. Before removing or modifying such use restrictions, the department shall consult with the department of health and human services and, at least 30 days prior to the filing of a release or modification of restriction, the department shall notify the owner and each mortgagee of record at their last known address by certified mail, return receipt requested, of the impending release or modification of the restrictions. For the purposes of this paragraph, any mortgagee whose mortgage was recorded in the office of the register of deeds at least 30 days prior to the mailing of the notice shall be entitled to notice. The department shall comply with the public participation requirements of RSA 147-F:12, I. The property owner, the program participant if other than the owner, and any mortgagee entitled to notice who is aggrieved by a decision to remove or modify a use restriction may appeal such decision to the commissioner of the department, whose decision shall be final.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:16

    147-F:16 Other Program Requirements. –
I. A program participant shall:
(a) Ensure stabilization of the property in accordance with RSA 147-F:8, I(b) before withdrawal from the program.
(b) Cooperate with the department throughout site investigation and remediation.
(c) Upon withdrawal from the program, provide the department with all non-privileged, material documents and information relating to the performance of site investigation or remedial activities at the property.
(d) Provide access to the department for all environmental compliance or remedial activities at the property until issuance of a certificate of completion.
(e) Provide access to any person acting pursuant to department approval for the purpose of conducting any investigative or remedial activity related to the contamination at the property until issuance of a certificate of completion.
(f) Promptly report any release or threat of release caused or exacerbated during remedial activities.
(g) Undertake emergency response action as required by the department to address releases or threats of releases at the property before completion of the remedial action plan.
(h) Pay all program fees as required by this chapter.
II. The obligations set forth in Paragraph I shall continue until the property is transferred to a successor owner, except the obligations of subparagraph I(a) shall continue until a successor owner stabilizes the site or completes implementation of a remedial action plan to the satisfaction of the department, and the transferor shall not be relieved of the obligations of subparagraph I(c).

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:17

    147-F:17 Sale or Transfer of Property in Program. –
I. Property in the brownfields program may be transferred to a successor owner at any time during the remedial process. A successor owner may participate in the brownfields program as provided in this section after receiving an eligibility determination under RSA 147-F:10 and paying the program fee under RSA 147-F:14.
II. If transfer of the property is made before approval of a remedial action plan, the successor owner, upon receipt of an eligibility determination and payment of the program fee, shall:
(a) Become a program participant.
(b) Continue with pre-remedial activities at the property.
(c) Be vested with all benefits and obligations provided in this chapter, including responsibility for immediate site stabilization if necessary.
III. If transfer of the property is made after approval of the remedial action plan but before certification of completion in accordance with RSA 147-F:13, the successor owner, after receipt of an eligibility determination and payment of the program fee, shall:
(a) Become a program participant.
(b) Assume responsibility for completion of the approved remedial action plan, which shall be amended at the request of the successor to extend or modify the schedule for completion of remedial activities, but only if the site has been stabilized to the department's approval.
(c) Receive a covenant not to sue in accordance with RSA 147-F:6.
IV. If transfer of the property is made after certification of completion in accordance with RSA 147-F:13, the successor owner shall enjoy the full benefit of the covenant appurtenant to the property and shall comply with all conditions of that covenant. The transferor of property in the program shall certify compliance with the approved remedial action plan, including all use restrictions. This certification shall be provided in writing to the successor owner at the time of transfer, with a copy to be provided to the department.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:18

    147-F:18 Rulemaking. –
I. The commissioner shall adopt rules, after public hearing and pursuant to RSA 541-A, relative to the administration of the brownfields program, including:
(a) The form and content of the eligibility application and accompanying certificate, the site investigation work plan and report, the remedial action plan, the environmental risk assessment and other submittals to the department, and the certificate of compliance upon property transfer.
(b) The scope of the preliminary environmental assessment, site investigation and environmental risk assessment.
(c) The application and review process, including a checklist of the documents and information required for a complete application.
(d) Public participation.
(e) Procedures for administrative review of eligibility determinations.
(f) Criteria for remediation and site stabilization.
(g) Long-term oversight and monitoring of properties with residual contamination.
(h) Criteria for imposition of use restrictions.
(i) Program fees structure, including procedures for maintaining records of department costs for the purpose of offsetting the initial fee and obtaining reimbursement in accordance with RSA 147-F:14.
(j) Such other rules as are necessary to carry out the provisions of this chapter.
II. The department shall consult with the department of health and human services to establish appropriate procedures for review and approval of risk assessments for sites for which the department determines that risk assessments shall be conducted.

Source. 1996, 241:2, eff. July 1, 1996. 2007, 219:8, eff. July 1, 2007.

Section 147-F:19

    147-F:19 Enforcement. –
I. The attorney general may institute an action before the superior court for the county in which the property is located or the superior court for Merrimack county against any person to enforce the terms of a covenant issued under this chapter.
II. If the department determines that an emergency exists at a property in the program requiring immediate action to protect the public health or environment, it may issue an order stating that an emergency exists and requiring that such action be taken as it judges necessary to meet the emergency. The order shall be effective immediately. Any person to whom such an order is directed shall comply immediately, but may appeal to the superior court for the county in which the property is located.
III. Upon petition of the attorney general, the superior court may impose a civil penalty not to exceed $25,000 for each day of a continuing violation upon any person who:
(a) Violates a use restriction imposed under this chapter.
(b) Made a material misrepresentation in any certificate or report submitted to the department under this chapter. Civil penalties imposed under this section shall be paid to the hazardous waste cleanup fund established by RSA 147-B.
IV. Any person who knowingly commits a violation listed in paragraph III of this section shall be guilty of a felony and, notwithstanding RSA 651:2, may in addition to any sentence of imprisonment, probation or conditional discharge, be fined no more than $25,000 for each violation if found guilty pursuant to this section. Each day of violation shall constitute a separate offense. Criminal penalties imposed under this section shall be paid to the hazardous waste cleanup fund established by RSA 147-B.

Source. 1996, 241:2, eff. July 1, 1996.

Section 147-F:20

    147-F:20 State Brownfields Cleanup Revolving Loan Fund. – Authority is granted for the state of New Hampshire to participate in the federally funded state brownfields cleanup revolving loan funds as may be provided under the Comprehensive Environmental Response, Compensation, and Liability Act, or related federal legislation as amended from time to time. The loan funds shall be administered by the commissioner, under rules adopted by the commissioner pursuant to RSA 541-A.

Source. 2000, 82:1, eff. June 20, 2000.