HAZARDOUS WASTE CLEANUP FUND
In this chapter, the following words shall have the following meanings, unless the context otherwise requires:
I-a. "Borrower" means the obligor of an obligation secured by a mortgage interest, mortgage lien, or security interest in a facility.
I-b. "Automotive oil" means any lubricating oil, which is reclaimable, classified for use in an internal combustion engine, transmission, gear box or differential for a motor vehicle, boat, off highway recreational vehicle, or commercial or household power equipment.
I-c. "Commissioner" means the commissioner of the department of environmental services.
I-d. "Department" means the department of environmental services.
II. "Disposal" means the discharge, deposit, incineration, injection, dumping, spilling, leaking or placing of any waste into or onto any land or water so that the waste or any constituent of the waste may enter the environment, be emitted into the air, or be discharged into any waters, including groundwaters.
III. "Facility" means any site, area or location where hazardous waste or hazardous materials are or have been treated, stored, generated, disposed of, or otherwise come to be located.
III-a. (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 as a fiduciary for purposes of administering an estate or trust of which such facility is a part.
(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.
III-b. "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.
IV. "Fund" means the New Hampshire hazardous waste cleanup fund.
V. "Generation" means the act of producing hazardous waste.
VI. "Generator" means any person who owns or operates a facility where hazardous waste is generated.
VII. "Hazardous waste" means a solid, semi-solid, liquid or contained gaseous waste, or any combination of these wastes:
(a) Which, because of either quantity, concentration, or physical, chemical, or infectious characteristics may:
(1) Cause or contribute to an increase in mortality or an increase in irreversible or incapacitating reversible illness; or
(2) Pose a present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of or otherwise mismanaged.
(b) Or which has been identified as a hazardous waste by the department using the criteria established under RSA 147-A:3, I or as listed under RSA 147-A:3, II. Such wastes include, but are not limited to, those which are reactive, toxic, corrosive, ignitable, irritants, strong sensitizers or which generate pressure through decomposition, heat or other means. Such wastes do not include radioactive substances that are regulated by the Atomic Energy Act of 1954, as amended.
VIII. "Hazardous materials" means those substances or materials in such quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce, by all modes which may include, but are not limited to, explosives, radioactive materials, etiologic agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, and compressed gases which are listed by the Materials Transportation Bureau of the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as amended.
VIII-b. "Notice of lien" means an instrument signed on behalf of the commissioner, designating a particular facility or facilities and identifying the persons then deemed by the commissioner to be liable under this chapter with respect to each such facility and their mailing addresses, to the extent known to the commissioner, and declaring a lien upon the real and personal property of such persons for the payment of the amounts due or to become due from such persons to the state under this chapter; provided, however, that neither the failure to state any address nor the designation of an incorrect address shall invalidate such notice of lien; and provided further that successive notices of lien, naming the persons so deemed liable, may be issued. The notice of lien shall be in the following form:
NOTICE OF LIEN
NOTICE is hereby given that the Department of Environmental Services claims a lien against the persons identified below pursuant to RSA 147-B:10-b in the amount claimed:
Name/Address Location of Facility Amount
In accordance with RSA 147-B:10-b, this notice shall be recorded with __________ and shall constitute a lien against property of the person(s) identified above and shall have effect and priority in accordance with RSA 147-B:10-b upon recording of this notice of lien with the above referenced department.
Dated this __________ day of __________, 20 ___.
DEPARTMENT OF ENVIRONMENTAL SERVICES
VIII-c, VIII-d. [Repealed.]
VIII-e. "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 the facility.
VIII-f. "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.
VIII-ff. "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.
VIII-g. "Participation in the management of a facility" means the actual participation by a holder in the management or operational affairs of the facility, including without limitation where a holder (i) exercises decision-making control over environmental compliance or (ii) exercises control at a level comparable to that of a manager of the enterprise with responsibility for day-to-day decision-making either with respect to environmental compliance or all or substantially all of the operational (as opposed to financial or administrative) aspects of the facility. The following types of activities, among others, shall not constitute participation in the management of a facility:
(a) Taking title to a facility by foreclosure, by accepting a deed to such facility in lieu of foreclosure or by other similar means, or the transfer or sale of such facility;
(b) Conducting, or requiring the borrower to conduct, an environmental assessment or audit of the facility;
(c) Withholding funds under an existing obligation or restructuring or renegotiating the terms of a borrower's obligations, including but not limited to, requiring the payment of interest, the extension of payment periods or the issuance of additional funds;
(d) Providing to the borrower financial advice;
(e) Requiring or advising the borrower to comply with federal, state or local laws, rules, regulations, orders or permits;
(f) Collecting rents, maintaining utility services and securing the facility from unauthorized entry; and
(g) Undertaking any cleanup action approved by the department.
VIII-h. "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. The indicia of ownership held after foreclosure continues to be maintained primarily as protection for a security interest provided that the holder undertakes to sell, re-lease property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of the property in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the facility, taking all facts and circumstances into consideration, and provided that the holder does not participate in management. A holder establishes that it is seeking to sell, re-lease or otherwise divest itself of the property following foreclosure and its equivalents by, within 5 months following foreclosure, listing the facility with a broker, dealer, or agent who deals with the type of property in question, or by advertising the facility as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the facility in question, or a newspaper of general circulation covering the area where the property is located. The holder is entitled to a presumption that it is holding indicia of ownership primarily to protect a mortgage interest or security interest but if the holder does not divest itself of the property within 3 years, the holder bears the burden of showing compliance with this paragraph.
VIII-i. "Qualifying holder" means a holder who does not participate in the management of the facility.
IX. "Person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state, municipality, commission, United States government or any agency thereof, political subdivision of the state, or any interstate body.
IX-a. "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.
X. "Storage" means the containment of hazardous wastes, either on a permanent basis or on a temporary basis or for a period of years, in such a manner as not to constitute disposal of the hazardous wastes.
X-a. "Tax lien" means a tax lien arising under RSA 80:19, the rights acquired by the grantee in a tax sale pursuant to RSA 80:20-RSA 80:42-a, and a tax lien acquired or transferred pursuant to RSA 80:58-RSA 80:86.
XI. "Transportation" means the movement of hazardous wastes from the point of generation to any intermediate points and, finally, to the point of ultimate storage or disposal.
XI-a. "Transporter" means any person who transports hazardous waste.
XII. "Treatment" means any process, including neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize the waste or to render the waste not hazardous, safer for transport, amenable to recovery, amenable to storage or reduced in volume.
XIII. "Used oil" means any oil that has been refined from crude oil, or synthetic oil, which, through use or handling, has become unsuitable for its original purpose due to the presence of physical or chemical impurities or loss of original properties.
Source. 1981, 413:3. 1983, 227:4, 6, 20, I; 291:1, I. 1986, 119:2-5; 202:6, I(e), 29, VI. 1992, 178:1, 2; 263:1. 1993, 323:11-13. 1994, 199:16-19; 364:2, 3, 14, I, II. 1995, 216:3. 1996, 228:34, 35, 106, 107. 1999, 52:7, eff. July 20, 1999.