HB 664-FN - VERSION ADOPTED BY BOTH BODIES
11Mar2015… 0491h
6May2015… 1673EBA
2015 SESSION
15-0711
08/10
HOUSE BILL 664-FN
AN ACT consolidating existing oil pollution funds.
SPONSORS: Rep. C. Christensen, Hills 21; Rep. Schroadter, Rock 17; Rep. Ebel, Merr 5
This bill consolidates the existing oil pollution funds.
This bill is a request of the department of environmental services and the oil fund disbursement board.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11Mar2015… 0491h
6May2015… 1673EBA
15-0711
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT consolidating existing oil pollution funds.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Elimination of Gasoline Ethers. Amend RSA 146-A by inserting after section 18 the following new section:
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.
2 Change in Oil Pollution Control Fund Deposits; Effective 2015. Amend RSA 146-A:11-a, II to read as follows:
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.]
3 Change in Oil Pollution Control Fund Deposits; Effective 2025. Amend RSA 146-A:11-a, II to read as follows:
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.
4 Consolidating Oil Import License Fees; Effective 2015. Amend RSA 146-A:11-b, II to read as follows:
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 [$100,000] $125,000 of fees paid in each fiscal year into the general fund. The remainder shall be deposited into the oil pollution control fund [administered] 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.
5 Consolidating Oil Import License Fees; Effective 2025. Amend RSA 146-A:11-b, II to read as follows:
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] administered 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.
6 New Paragraph; Collection of Import Fees; Fund Balance. Amend RSA 146-A:11-b by inserting after paragraph II the following new paragraph:
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.
7 Allocation of Penalties and Interest; Effective 2015. Amend RSA 146-A:11-b, IV to read as follows:
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.
8 Allocation of Penalties and Interest; Effective 2025. Amend RSA 146-A:11-b, IV to read as follows:
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.
9 Oil Discharge and Disposal Cleanup Fund; Change in Use. RSA 146-D is repealed and reenacted to read as follows:
CHAPTER 146-D
OIL DISCHARGE AND DISPOSAL CLEANUP FUND
146-D:1 Purpose.
I. The general court finds that gasoline, gasoline ethers and tertiary butyl alcohol (TBA), diesel fuel, heating oil, motor oil, and used motor oil, comprise a sufficiently distinct class of property which represents a potential serious health and safety problem to the citizens of New Hampshire. In particular, gasoline, gasoline ethers, TBA and diesel fuel present a potential threat to the quality of New Hampshire’s groundwater, environment and public health of its citizens, because of the speed with which these products are able to flow into, and contaminate, valuable groundwater supplies. In addition, the cost of cleanup of oil discharges is a significant economic burden for which economic assistance is otherwise not available. The purpose of this chapter is to establish financial responsibility for the cleanup of oil discharges and disposal, and to establish a fund to be used in addressing the costs incurred by the owners of public and private water supplies, oil storage facilities, and potential contamination source properties for the prevention and cleanup of oil discharges, to protect groundwater, and for reimbursement of third party damages.
146-D:2 Definitions. In this chapter:
I. “Above ground storage facility” means a location not regulated under RSA 146-C, consisting of a system of storage tanks, pipes, pumps, and appurtenant structures, singly or in any combination, with a total storage capacity less than or equal to 1,100,000 gallons, which is or has been used for the storage of gasoline and blends, diesel fuel and blends, or oil for on-premise-use heating.
II. “Commissioner” means the commissioner of the department of environmental services.
III. “Department” means the department of environmental services.
IV. “Motor oil storage facility” means a location consisting of a system of storage tanks, pipes, pumps, and appurtenant structures which is, or has been, used for the storage of motor oil or used motor oil.
V. “Oil” means “oil” as defined in RSA 146-A:2, III.
VI. “On-premises-use facility” means a system of storage tanks, pipes, pumps, and appurtenant structures, singly or in any combination, which is or has been used for the storage of fuel oil for on-premise heating.
VII. “Potential contamination source” means a “potential contamination source” as defined in RSA 485-C:7, II.
VIII. “Underground storage facility” means a location consisting of a system of underground storage tanks, pipes, pumps, vaults, fixed containers and appurtenant structures, singly or in any combination, which are used or designated to be used for the storage, transmission, or dispensing of oil, and which are within the size, capacity and other specifications prescribed by rules adopted by the commissioner pursuant to RSA 146-C:9, VI.
146-D:3 Fund Established.
I. There is established an oil discharge and disposal cleanup fund. This fund shall be used, consistent with the provisions of this chapter, to reimburse costs incurred in cleaning up oil discharges in the groundwater and surface waters and soils of the state and in paying third party damages.
II. The fund shall also be used to pay administrative, technical and legal support required by the oil fund disbursement board in administering the fund, including collection of import fees under RSA 146-A:11-b.
III. Moneys in the fund not currently needed to meet the obligations of the board 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.
146-D:4 Oil Fund Disbursement Board Established; Membership.
I. There is established the oil fund disbursement board, to be composed of the following members:
(a) The commissioner of environmental services, or his designee.
(b) The commissioner of safety, or designee.
(c) Three members representing petroleum dealers, distributors, and refiners, appointed by the governor with the consent of the council.
(d) One member, representing fuel oil dealers, appointed by the governor with the consent of the council.
(e) Two public members, appointed by the governor with the consent of the council.
(f) Two members of the senate, appointed by the president of the senate.
(g) Two members of the house of representatives, appointed by the speaker of the house of representatives.
II. The board members shall serve without compensation, except that all non-legislative members shall be reimbursed for mileage incurred on board business at the state employee mileage rate. The legislative members shall be reimbursed for mileage at the legislative rate. Such reimbursements shall be a charge against the oil discharge and disposal cleanup fund established under RSA 146-D:3, I.
III. Any member of the board having an individual interest, or an interest in another business, which may conflict with an issue under consideration by the board, shall not participate in any deliberations or vote of the board on the issue before the board.
IV. Terms for state agency and legislative members shall be the same as their terms in office. Board members appointed under subparagraphs I(c), I(d) and I(e), shall have 3-year terms. Upon term expiration, each appointed member shall hold office until a successor shall be appointed and qualified. Board members may be reappointed to subsequent terms.
146-D:5 Board Powers and Duties.
I. The board shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Organization and procedural rules.
(b) Processing applications for reimbursement from the oil discharge and disposal cleanup fund.
(c) Procedures for verifying reimbursement claims presented under this chapter.
(d) Specifying costs in relation to reimbursements claimed.
(e) Developing eligibility criteria in addition to the requirements of RSA 146-D:6.
II. The board shall submit an annual report of the status of the oil discharge and disposal cleanup fund no later than October 1, to the governor and council, speaker of the house, president of the senate, house environment and agriculture committee and senate environment committee.
III. The board, with approval of the governor and council, may employ legal counsel as necessary to perform its duties in administering the oil discharge and disposal cleanup fund.
IV. The board may request that the attorney general issue subpoenas, examine witnesses, or request any other information on behalf of the board for the purposes of determining eligibility for reimbursement under this chapter.
146-D:6 Eligible Expenses and Availability of Funds.
I. The fund shall be available for reimbursement of costs incurred by owners of public and private water supplies due to oil contamination from an unknown source. This may include, but not be limited to, bottled water and interim treatment systems, a proportioned share of the costs of construction of the extension of public water mains and appurtenances, the installation of replacement water supply wells and appurtenances, or the installation of water treatment processes. Operation and maintenance costs or annual user fees for new or upgraded public water supply main extensions or treatment processes shall not be eligible expenses under this paragraph.
II. The fund shall be available for reimbursement of costs for court-ordered damages to third parties or bodily injury or property damage due to oil contamination incurred by owners of oil storage facilities and owners of land where compliant oil storage facilities were located, and for the costs of on-site and off-site cleanup of oil contamination incurred by owners of oil storage facilities, owners of land where compliant oil storage facilities were located, and owners of potential contamination source properties.
III. Owners of on-premises-use facilities who have demonstrated financial need may apply for reimbursement of costs to meet local and department operating standards in amounts not to exceed a total of $1,500, and may apply for reimbursement of underground storage tank abandonment or removal costs in amounts not to exceed a total of $2,500.
IV. Reimbursement under paragraph II of this section shall be limited as follows:
(a) Owners of oil storage facilities and potential contamination source properties shall demonstrate compliance with department rules and best management practices for facility operation.
(b) Owners of on-premises-use facilities, or owners of land where facilities are or were located, shall be eligible for reimbursement in amounts not to exceed a total of $500,000, incurred on or after October 1, 1992.
(c) Owners of above ground and underground storage facilities or land where facilities were located shall be eligible in amounts not to exceed a total of $1,500,000, incurred on or after July 1, 1988. After the initial $1,500,000 is reimbursed, owners may apply for reimbursement of additional onsite and off-site cleanup costs in amounts not to exceed a total of $500,000.
(d) Owners of motor oil storage facilities or land where facilities were located shall be eligible in amounts not to exceed a total of $500,000, incurred on or after July 1, 1995.
(e) Owners of potential contamination source properties shall be eligible for costs incurred on or after July 1, 2001.
V.(a) To the extent such amount is expended from the fund, or for such lesser amount as is expended, owners of above ground storage facilities, motor oil storage facilities, and underground storage facilities shall be liable to the fund for the following:
(1) The owner of from one to 3 facilities shall be responsible for the initial $5,000 of costs at each facility owned.
(2) The owner of from 4 to 9 facilities shall be responsible for the initial $10,000 of costs at each facility owned.
(3) The owner of from 10 to 19 facilities shall be responsible for the initial $20,000 of costs at each facility owned.
(4) The owner of 20 or more facilities shall be responsible for the initial $30,000 of costs at each facility owned.
(5) The owner of land where compliant facilities were located shall be responsible for the lesser of the initial $5,000 of cleanup costs at each location owned or the balance of the prior facility owner’s initial cleanup cost liability at each such location.
(b) This amount shall not be withheld from reimbursement when the reimbursement is disbursed from the fund over to a party other than an owner liable under this paragraph. The board may pursue the owner in an independent legal action, and the owner shall be liable for interest from the date that the disbursement is made and for legal fees and costs incurred by the fund in obtaining and enforcing judgment under this paragraph. All amounts recovered shall be paid into the fund.
VI. Owners of on-premises-use facilities shall be liable to the fund for the initial $500 of cleanup costs at each facility owned. For owners receiving financial assistance under paragraph III, the liability for initial cleanup costs shall be $100.
VII. For owners of above ground storage facilities, motor oil storage facilities, on-premise-use facilities and underground storage facilities, the fund shall be deemed excess insurance over any other valid and collectible insurance for the costs of cleanup and damages to third parties. There shall be no right of recovery against the fund for payments made under other insurance.
VIII. Notwithstanding any provision of this section, the board shall not be liable to any eligible party if sufficient funds are not available to meet the limits established in this section. Reimbursement requests received for which sufficient funds are not available at the time of receipt shall be held pending availability of funds and shall be reviewed in the order in which they were received, in consideration of environmental and human health risks.
IX. All cleanup work plans approved by the department and reimbursement requests approved for payment by the board shall be considered an obligation against any balance in the fund not needed to pay administrative, technical and legal support required by the board, including collection of import fees under RSA 146-A:11-b.
X. Upon payment from the fund for cleanup and corrective action costs or for third party to liability costs pursuant to this chapter, the right of an owner to recover any payment from any third party potentially responsible for such costs shall be assumed by the board to the extent of payment made from the fund. An owner shall not receive multiple compensation for the same injury, and any such compensation shall be repaid to the fund.
XI. Costs of new tanks and associated piping, or repairs to existing tanks and associated piping, for oil storage facilities regulated under RSA 146-A and RSA 146-C shall not be considered eligible costs under this chapter.
146-D:7 Penalties.
I. Any person who violates the provisions of this chapter shall be subject to the lien provisions provided in RSA 260:63 through RSA 260:65-a.
I-a. Where any liability to the fund under RSA 146-D is not paid as prescribed by the oil fund disbursement board, the amount, including interest together with the costs that may accrue in addition thereto, shall become a lien in favor of the board upon all property and rights to property, whether real or personal, in the same manner as that prescribed in RSA 260:63 through RSA 260:65-a, which provisions shall govern the board’s imposition and enforcement of the lien created by this section.
II. Any person who misrepresents any material fact or submits any false material statement, information, or certification to the board shall forfeit any right to reimbursement under this chapter.
III. Any person who recklessly or knowingly misrepresents any material fact or who recklessly or knowingly submits any false material statement, information, or certification to the board shall be guilty of a class B felony if a natural person and guilty of a felony if any other person. Notwithstanding RSA 651:2, a person may, in addition to any sentence of imprisonment, probation, or conditional discharge, be fined not more than $25,000 if found guilty of any violation under this paragraph.
146-D:8 Board Administratively Attached. The oil fund disbursement board shall be administratively attached to the department of environmental services pursuant to RSA 21-G:10.
10 Re-Allocation of Recovery Funds. Amend RSA 146-C:12, II to read as follows:
II. [There is established the New Hampshire leaking underground storage tank cost recovery fund. This fund is intended to expedite the cleanup of additional leaking underground storage tank sites.] Cost recovered monies originally expended from the federal leaking underground storage tank trust fund shall be deposited into [this nonlapsing revolving] the oil pollution control fund, [which shall be continually appropriated exclusively to pay all costs related to the management and cleanup of additional leaking underground storage tank sites] established in RSA 146-A:11-a and accounted for separately.
11 Application of Receipts. Amend RSA 6:12, I(b)(45) to read as follows:
(45) Money received under RSA 146-C:12, II which shall be credited to the [leaking underground storage tank cost recovery] oil pollution control fund established in [RSA 146-C:12, II] RSA 146-A:11-a.
12 Rulemaking; Commissioner of Safety. Amend RSA 21-P:14, V(q) to read as follows:
(q) Procedures for the inspection and verification of oil import records pursuant to RSA 146-A:11-b[, RSA 146-E:3, and RSA 146-F:3] after consultation with the department of environmental services and the oil fund disbursement board, and pursuant to RSA 147-B:12 after consultation with the department of environmental services.
13 Determination and Payment of Road Toll; 2015. Amend RSA 260:38, IV to read as follows:
IV. The department of safety shall be responsible for licensing and the collection of the fee established under RSA 146-A:11-b[, RSA 146-E:3, and RSA 146-F:3] and transfer of such fees into the appropriate designated funds under rules adopted by the commissioner pursuant to RSA 541-A, after consultation with the department of environmental services and the oil fund disbursement board. The department of safety shall be responsible for the collection of the fee established under RSA 147-B:12 and transfer of such fee into the hazardous waste cleanup fund under rules adopted by the commissioner pursuant to RSA 541-A, after consultation with the department of environmental services.
14 Lapsing Funds.
I. All moneys remaining in the funds established in RSA 146-E, RSA 146-F, and RSA 146-G, budgeted expenses, and current obligations on the effective date of this section shall be transferred to the oil discharge and disposal cleanup fund established in RSA 146-D:3, I.
II. All moneys remaining in the leaking underground storage tank cost recovery fund established in RSA 146-C:12, II, budgeted expenses, and current obligations on the effective date of this section shall be transferred to the oil pollution control fund established in RSA 146-A:11-a.
15 Repeal. The following are repealed:
I. RSA 146-E, relative to the fuel oil discharge cleanup fund.
II. RSA 146-F, relative to the motor oil discharge cleanup fund.
III. RSA 146-G, relative to gasoline remediation and elimination of ethers.
IV. RSA 6:12, I(b)(48), relative to moneys received from the fuel oil discharge cleanup fund.
V. RSA 6:12, I(b)(55), relative to the moneys received from the motor oil discharge cleanup fund.
VI. RSA 6:12, I(b)(77), relative to deposits in the gasoline remediation and elimination of ethers fund.
VII. RSA 146-C:12, III, relative to the leaking underground storage tank cost recovery fund.
VIII. 2008, 249:7 and 2010, 94:5, relative to contingent amendments to RSA 260:38, IV.
16 Prospective Repeal. RSA 146-A:11-b, II-a, relative to discontinuation of the collection of charges for the oil pollution control fund and oil discharge and disposal cleanup fund under certain conditions, is repealed.
17 Effective Date.
I. Sections 3, 5, 8 and 16 of this act shall take effect at 12:01 a.m. on July 1, 2025.
II. The remainder of this act shall take effect July 1, 2015.
LBAO
15-0711
01/26/15
HB 664-FN - FISCAL NOTE
AN ACT consolidating existing oil pollution funds.
FISCAL IMPACT:
The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill, as introduced, as it is awaiting information from the Departments of Justice and Corrections, Judicial Branch, and New Hampshire Association of Counties, who were contacted on 01/16/15. When completed, the fiscal note will be forwarded to the House Clerk's Office.