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Appendix G-1 New Hampshire Statutory Requirements Applicable to the Underground Storage Tank Program 1993 40 CFR 282.79 OSWER Directive 9650.15 PROCEDURES AND REQUIREMENTS FOR CODIFICATION OF APPROVED STATE UST PROGRAMS September 1994

APPENDIX G-1

SAMPLE INCORPORATION BY REFERENCE BINDERS
(NEW HAMPSHIRE)
NEW HAMPSHIRE STATUTORY REQUIREMENTS
APPLICABLE TO THE UNDERGROUND STORAGE TANK
PROGRAM, 1993 40 CFR 282.79

 


OSWER Directive 9650.15

 

TABLE OF CONTENTS

Statutory Provisions

New Hampshire Revised Statutes Annotated 1955, 1990 Replacement Edition, and 1992 Cumulative Supplement, Chapter 146-C, Underground Storage Facilities

 

146-C:1 Definitions, except for the following words in 146-C:1. XII, "heating or"

146-C:2 Discharges Prohibited

146-C:3 Registration of Underground Storage Facilities

146-C:4 Underground Storage Facility Permit Required

146-C:5 Records Required; Inspections

146-C:6 Transfer of Ownership

146-C:6a Exemption

146-C:7 New Facilities

146-C:8 Prohibition Against Reusing Tanks

146-C:9 Rulemaking

146-C:11 Liability for Cleanup Costs; Municipal Regulations

146-C:12 Federal Assistance and Private Funds

 



OSWER Directive 9650.15

 

NEW HAMPSHIRE

REVISED STATUTES

ANNOTATED

1955

 

1990 REPLACEMENT EDITION

Titles 10, 11

Chapters 125-152

 


OSWER Directive 9650.15

 

CHAPTER 146-C

UNDERGROUND STORAGE FACILITIES

146-C:1 Definitions.

146-C:2 Discharges Prohibited.

146-C:3 Registration of Underground Storage Facilities.

146-C:4 Underground Storage Facility Permit Required.

146-C:5 Records Required: Inspections.

146-C:6 Transfer of Ownership.

146-C:6-a Exemption.

146-C:7 New Facilities.

146-C:8 Prohibition Against Reusing Tanks.

146-C:9 Rulemaking.

146-C:9-a Orders: Injunctions.[NOT PROVIDED]

146-C:10 Penalty.[NOT PROVIDED]

146-C:10-a Administrative Fines.[NOT PROVIDED]

146-C:11 Liability for Cleanup Costs: Municipal Regulations.

146-C:12 Federal Assistance and Private Funds.

 

CROSS REFERENCES

Oil discharge and disposal cleanup fund, see RSA 146-D.
Oil spillage in public waters, see RSA 146-A.
Petroleum inventories reporting, see RSA 339-D.
Sale of liquid fuels, see RSA 339-B.

LIBRARY REFERENCES

New Hampshire Code of Administrative Rules
Rules of the Water Supply and Pollution Control Commission, Ws 411.01 et seq.,
New Hampshire Code of Administrative Rules Annotated.
West Key Number Health and Environment < = 25.5(5.5) CJS
Health and Environment § 131. ALR
Gasoline or other fuel storage tanks as nuisance. 50 ALR3d 209.
Liability for pollution of subterranean waters. 38 ALR2d 1265.
Maintainability in state court of class action for relief against air and water pollution, 47 ALR3d 769.
Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 ALR3d
Standing to sue for violation of state environmental regulatory statute. 66 ALR4th 685.
Validity and construction of anti-water pollution statutes and ordinances. 32 ALR2d 215

 

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OSWER Directive 9650.15

 

146-C:1 Definitions. In this chapter:
  1. "Division" means the New Hampshire division of water supply and pollution control.
  2. "Discharge" means the release or addition of any liquid to land, groundwaters or surface waters.
  3. "Disposal" means deposit, discharge, injection, dumping, spilling, leaking, leaching, or placing of oil into or on any land, groundwater or surface water.
  4. "Existing facility" means a facility the construction or installation of which began prior to September 17, 1985.
  5. "Facility" means a system of tanks, pipes, pumps, vaults, fixed containers, and appurtenant structures, singly or in any combination, which are used or designed to be used for the storage, transmission, or dispensing of oil or petroleum liquids, and which are within size, capacity, and other specifications prescribed by rules adopted by the division pursuant to RSA 146-C:9, VI.
  6. "Failure" means a condition which may or does allow the uncontrolled passage of liquid into or out of a facility, and includes, but is not limited to, a discharge to the waters of the state without a permit issued pursuant to RSA 146-C:4.
  7. "Groundwaters" means all areas below the top of the water table, including aquifers, wells, and other sources of groundwater.
  8. "Life expectancy" means the time period within which a failure is not expected to occur as determined by the division.
  9. "Liquid" means oil and petroleum liquids.
  10. "New facility" means a facility the construction or installation of which begins on or after September 17, 1985, including, but not limited to, facilities which replace existing facilities, facilities which are moved from one location to another, and facilities which are substantially modified after September 17, 1985.
  11. "Nonresidential", when referring to a facility, means an facility which serves any commercial, industrial, institutional, but not including non-commercial residential buildings.
  12. "Oil" means petroleum products and their by-products of any kind and in any form, including, but not limited to, petroleum, fuel, sludge, crude, and all other liquid hydrocarbons regardless of specific gravity and which are used as motor fuel, lubricating oil, or any oil used for processing. The term "oil" shall not include natural gas, liquefied petroleum gas, or synthetic natural gas, regardless of derivation or source.
  13. "Operator" means the person who has responsibility for the care, custody, and control of the daily operation of a facility.
  14. "Owner" means the person in possession of or having legal ownership of a facility. In addition, for facilities no longer in use on November 8, 1984, "owner" includes the person having had legal ownership of such facility immediately prior to discontinuance of its use.
  15. XIV-a. "Person" means any individual, trust firm, joint stock company, corporation (including a government corporation), partnership, association, state and agencies thereof, municipality, commission, political subdivision of a state, interstate body, consortium, joint venture, commercial entity, the United States government and agencies thereof, and any other legal entity. The term "person" shall not include a person who, without participating in the management or actual operation of the facility, and otherwise not engaged in petroleum production, refining, or marketing, holds indicia or ownership primarily to protect a mortgage on real property on which a facility is located or a security interest in personal property located at the facility.
  16. "Residential building" means any house, apartment, trailer, manufactured housing, or other structure occupied by individuals as a domicile.
  17. "Substantial modification" means the construction or installation of any addition to a facility or any restoration or renovation of a facility which: increases or decreases the on-site storage capacity of the facility; significantly alters the physical configuration of the facility; or impairs or improves the physical integrity of the facility or its monitoring systems. On-site abandonment is specifically excluded as a "substantial modification" of a facility.
  18. "Surface water" means streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, watercourses, and other bodies of water natural or artificial.
  19. "Underground storage facility" means a facility or facility component that is 10 percent or more below the surface of the ground and is not fully visible for inspection.
HISTORY

Source, 1986, 182:1. 1988, 249:1-3. eff. June 29, 1988.

Amendments-1988. Paragraph II: Substituted "release or addition" for "disposal, addition, or injection" preceding "of any liquid to", inserted "land" thereafter and deleted "from any designed conveyance system, including, but not limited to, pipe, ditch, channel, tunnel, conduit, well, fissure, container, or tank, as well as any designed leachate disposal system" following surface water". Paragraph III: Inserted "spilling, leaking, leaching" preceding "or placing" "groundwater" following "on any land", "surface" preceding "water" and deleted "so that such waste or any constituent hereof may enter surface or groundwater" thereafter. Paragraph XIII: Deleted "or political subdivision" preceding "who has responsibility". Paragraph XIV: Deleted "or political subdivision" preceding "in possession" in the first sentence and added the second sentence. Paragraph XIV-a: Added. Revision note. Substituted "division" for "commission" in pars. I and VIII and "division of water supply and pollution control commission" in par. I pursuant to 1986, 202-6, II.


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OSWER Directive 9650.15

 

146-C:2 Discharges Prohibited. No owner or operator shall discharge or dispose of any oil as defined in the chapter from any facility into or onto land, groundwaters, or surface waters of the state.
HISTORY
Source. 1986, 182:1. 1988, 249:4, eff. June 29, 1988. Amendments-1988. Inserted "into or onto land" following "from any facility", deleted "to the surface waters or" preceding "groundwaters" and inserted "or surface waters" thereafter.
CROSS REFERENCES
Liability for cleanup and restoration cost. section 146-C:11.

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OSWER Directive 9650.15

 

146-C:3 Registration of Underground Storage Facilities.
  1. The owner of each existing underground storage facility shall register the facility with division on forms provided by the division and shall provide the following information:
    1. Facility name, location, and mailing address.
    2. Owner's name, mailing address, and telephone number.
    3. Contact person for this facility.
    4. Tank information: the size, age, type of tank material, location (on-site), and oil product stored.
    5. Demonstration of financial responsibility pursuant to rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial assistance under RSA 146-D shall satisfy the requirement of demonstration of financial responsibility under this subparagraph.
  2. The owner of each existing underground storage facility shall register the facility with the division on forms provided by the division, and shall provide the following information to the extent that it may reasonably be available to the owner:
    1. Results of previous tank testings conducted in accordance with division rules, including documentation of test result.
    2. All previous owners and lessees with names and current addresses.
    3. A detailed description of the facility; the size of tanks (physical dimensions), number of fill boxes, number and type of fittings attached to tanks, complete description of underground piping system, type of cathodic protection, date each tank was manufactured, installed, relined, and inspected, and tank manufacturer, and the date and results of the latest tightness test of all underground tanks.
    4. The estimated life expectancy of all inground tanks and appurtenances.
    5. Description and date of past discharges or disposal of petroleum based products, remedial actions, ground and surface water monitoring results, and closure plans.
    6. Detailed site plan and layout.
    7. Existing groundwater protection monitoring programs, if any.
  3. The owner of a registered underground storage facility shall report any changes in the information provided under paragraph I or II within 10 days of the change.
  4. The registration required under this section shall be renewed every 5 years. A registration need not be renewed if the division has received written notice that the registered underground storage facility has been closed by approved procedures according to rules adopted pursuant to RSA 146-C:9, II(i). Any notice of closure shall include to date of such closure.
  5. The division shall forward information compiled under this section to the federal Environmental Protection Agency pursuant to 42 U.S.C. 6991a(c).
HISTORY
Source. 1986, 182:1. 1988, 249:5, 6. eff. June 29, 1988. Amendments-1988, Paragraph I(e): Added. Paragraph V: Added. Revision note. In the introductory clauses of pars. I and II, in par. II(a) and in the second sentence of par. IV, substituted "division" for commission pursuant to 1986. 202:6, II.

Contingent 1988 amendment. 1988. 249:19 provided for amendment of this section. However, under the terms of 1988. 249:21, eff. June 29, 1988, the amendment did not take effect.

CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.

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OSWER Directive 9650.15

 

146-C:4 Underground Storage Facility Permit Required.
  1. No person shall own or operate an underground storage facility in this state without a permit issued by the division. The division may revoke or modify any permit following a hearing, upon a finding the just cause exists for such action.
  2. The division shall issue or deny a permit to all facilities registered under RSA 146-C:3 within 90 days of the receipt of the complete registration information. A permit issued under this section shall be displayed on the premises of the underground storage facility at all times. Permits shall be valid for a period of 5 years.
HISTORY

Source. 1986, 182:1, eff. May 28, 1986.

Revision note. References to "water supply and pollution control commission" in the first sentence of par. I and to "commission" in the second sentence of that paragraph and in the first sentence of par. II changed to "division" pursuant to 1986, 202:6, II.

CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.
Penalty for operation of facility without permit see RSA 146-C:10.
Transfer of ownership, see RSA 146-C:6.

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OSWER Directive 9650.15

 

146-C:5 Records Required; Inspections.
  1. The operator of an underground storage facility shall keep and reconcile accurate stock inventory records for the purpose of detecting leaks. The records shall be maintained and made available for division inspection and copying for a period of not less than 3 years.
  2. For the purpose of developing or assisting in the development of any rule, conducting any study, instituting any corrective measures, or enforcing the provisions of this chapter, any owner or operator of a facility subject to regulation under this chapter shall, upon request of any employee or authorized representative of the division, furnish information relating to such facility or its contents, conduct monitoring or testing, permit such employee or authorized representative at all reasonable times to have access to and to copy all records relating to such facility, and permit such employee or authorized representative to have access to the facility for corrective measures.
  3. For the purpose of developing or assisting in the development of any rule, conducting any study, instituting corrective measures, or enforcing the provisions of this chapter, division employees or authorized representatives may, upon the presentation of appropriate credentials:
  1. Enter at reasonable times any site where a facility regulated under this chapter is located.
  2. Inspect and obtain samples from any person of any regulated substances in such facility.
  3. Conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water or groundwater.
  4. Institute corrective measures.
HISTORY

Source. 1986, 182:1. 1988, 249:7, 8, eff. June 29, 1988. Amendments-1988. Paragraph II: Amended generally. Paragraph III: Added. Paragraph IV: Added. Revision note. In the second sentence of par. I and the first sentence of par. II, substituted "division" for ""commission". pursuant to 1986, 202-6, II.

CROSS REFERENCE

Exempt facilities, see RSA 146-C:6-a
Liability of owner for recordkeeping, see RSA 146-C:10.


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OSWER Directive 9650.15

 

146-C:6 Transfer of Ownership. Prior to the transfer of ownership of an underground storage facility, the transferor shall notify the transferee of the transferor's compliance with the rules of the division relative to tank testing and replacement. When a transfer of ownership takes place, the new owner shall notify the division of the transfer and shall assume the permit issued to the previous owner.
HISTORY
Source. 1986, 182:1, eff. May 28, 1986.

Revision note. Reference to "commission" preceding "relative" in the first sentence and following "notify the" in the second sentence changed to "division".

CROSS REFERENCES
Exempt facilities, see RSA 146-C:6-a.

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OSWER Directive 9650.15

 

146-C:6-a Exemption. The provision of RSA 146-C:3, 4, 5, I and 6 shall not apply to facilities no longer in use on January 1, 1974. The provisions of RSA 146-C:4, 5, I and 6 shall not apply to facilities taken out of use on or after January 1, 1974, and closed according to rules adopted under RSA 146-C:9, II(I).
HISTORY
Source. 1988, 249:9, eff. June 29, 1988.

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OSWER Directive 9650.15

 

146-C:7 New Facilities
  1. Prior to commencing construction or installation of a new facility or substantial modification of an existing facility, an owner shall submit plans and specifications to the division and obtain written approval of those plans. Such plans shall be approved by an engineer licensed to practice in the state of New Hampshire on forms provided by the division. Within 90 days of submission of completed plans, the division shall send the owner written notice of approval or disapproval. Failure to send a notice shall be deemed to be approval of the plans.
  2. An owner shall not cause or allow any act which is not in accordance with the approved plans and all terms and conditions of the division's approval of those plans.
  3. An owner shall demonstrate financial responsibility pursuant to rules adopted under RSA 146-C:9, VII. Proof of eligibility for financial assistance under RSA 146-D shall satisfy the requirement of demonstration of financial responsibility under this paragraph.
HISTORY
Source. 1986, 182:1. 1988, 249:10 eff. June 29, 1988. Amendments-1988. Paragraph III: Added. Revision note. Reference to "commission throughout par. I and to "commission's" in par. II changed to "division" and "division's", respectively, pursuant 1986, 202:6, II.

Contingent 1988 amendment. 1988, 249:20 provided for amendment of this section. However, under the terms of 1988. 249:21 eff. June 29, 1988, the amendment did not take effect.

CROSS REFERENCES
Issuance of permits, see RSA 146-C:4.

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OSWER Directive 9650.15

 

146-C:8 Prohibition Against Reusing Tanks. Tanks which are removed and do not meet the standards for new tanks shall not be reinstalled for the purpose of petroleum storage. If a tank meets the standards, it may be reinstalled for petroleum storage if after thorough cleaning and inspection, internally and externally, it is found to be structurally sound and free of pinholes, cracks, structural damage, or excessive corrosion, Such tanks shall be reinstalled in accordance with requirements of this chapter, A tank once used for petroleum shall not be reused for a food product. If a tank is to be disposed of as junk, it must be retested or petroleum vapors, rendered vapor free if necessary, and punched with holes to make it unfit for further use.
HISTORY
Source. 1986, 182:1, eff. May 28, 1986.

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OSWER Directive 9650.15

 

146-C:9 Rulemaking. The division shall adopt rules, under RSA 541-A, relative to:
  1. Procedures, forms, and information required to registration of underground storage facilities, as authorized by RSA 146-C:3.
  2. Procedures, forms, and criteria for issuing and renewing permits, as authorized by RSA 146-C:4. Criteria for permits shall include, but not be limited to:
    1. Minimum standards for repairing an underground steel tank.
    2. Tank replacement schedules.
    3. Tank testing schedules.
    4. Minimum standards for new underground tanks.
    5. Standards for fiberglass, fiberglass clad, and steel tanks.
    6. Standards for leak monitoring at underground storage facilities.
    7. Minimum standards for secondary containment for underground storage facilities.
    8. Minimum standards for piping systems at underground storage facilities.
    9. Procedures for the temporary and permanent closure of underground storage facilities.
    10. Technical and procedural alternatives and exemptions.
  3. Requirements for recordkeeping, as authorized by RSA 146-C:5, I.
  4. Procedures for conducting inspections, as authorized by RSA 146-C:5, II.
  5. Procedures, forms, and criteria for approving plans for new underground storage facility construction and installation, as authorized by RSA 146-C:7.
  6. Criteria for determining what constitutes a facility under this chapter including, but not limited to, tank size and capacity.
  7. Criteria for demonstrating financial responsibility for ownership and operation of underground storage facilities.
  8. Acceptance and distribution of funds from the leaking underground storage tank trust fund established pursuant to 26 U.S.C. section 9508.
HISTORY
Source. 1986, 182:1. 1988, 249:11, eff. June 29, 1988. Amendments-1988. Paragraph VII: Added. Paragraph VIII: Added. Revision note. In the introductory clause, substituted "division" for "commission" pursuant to 1986, 202:6, II. Adoption of rules relative to financial responsibility and federal funds. 1988, 249:17, eff. June 29, 1988, provided:"Notwithstanding any section of this act, the division of water supply and pollution control shall not issue rules pursuant to RSA 146-C:9, VII as inserted by section 11 of this act until the U.S. Environmental Protection Agency has issued its final rules relative to financial responsibility for ownership and operation of underground storage facilities. The division shall adopt such rules not later than 90 days after the issuance of such final federal rules. The rules adopted by the division pursuant to RSA 149-C:9, VII and VIII shall not be more stringent than the federal rules.
CROSS REFERENCES
Adoption of rules relating to administrative fines, see RSA 146-C:10-a. 146-C:12
LIBRARY REFERENCES
West Key Number Health and Environment < = 25.5
CJS Health and Environment § 137.

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OSWER Directive 9650.15

 

146-C:11 Liability for Cleanup Costs; Municipal Regulations.
  1. Any owner or operator or other person who directly or indirectly causes or suffers the discharge or disposal of oil into or onto any surface water or groundwater of this state, or in a land area where oil has seeped or may or will ultimately seep into any surface water or ground water of the state in violation of this chapter, or rules adopted under this chapter, shall be strictly liable for the costs directly or indirectly resulting from the violation relating to:
    1. Containment of the discharged oil;
    2. Cleanup and restoration of the site and surrounding environment, and corrective measures as defined under RSA 146-A:11-a, III(a) and (b); and
    3. Removal of the oil.
    I-a. The owner of operator of a facility shall immediately inform the division of any discharge or disposal in violation of this chapter. Such person shall take immediate action to mitigate damages from such discharge consistent with any applicable rules of the division. If the owner is not the operator of the facility, the operator shall immediately inform the owner of any discharge or disposal in violation of this chapter.
  2. Nothing in this chapter shall be construed to prevent the party strictly liable from instituting a legal action against any party responsible for causing the spillage for costs incurred by the strictly liable party in complying with this chapter.
  3. Nothing in this chapter shall be construed to pre-empt local zoning or other regulations, properly enacted under other statutes, which reasonably regulate to location of underground storage facilities.
  4. The division shall immediately notify the governing body of a municipality of any leaking underground storage tanks either within the municipality or near the local water supply.
  5. [Repealed.]
HISTORY
Source. 1986, 182:1. 1987, 377:4, 6. 1988. 249:14. 15, eff. June 29, 1988; 271:9. VII, eff. July 1, 1988.

Amendments-1988. Paragraph I: Chapter 249 inserted "or disposal" following "discharge" in the introductory paragraph. Paragraph I-a: Added by ch. 249. Paragraph V: Repealed by ch. 271. 202:6, II. -1987. Paragraph I(b): Inserted "and corrective measures as defined under RSA146-A:11-a, III(a) and (b) "following" environment". Paragraph V: Added. Revision not. In par. I, substituted "surface water or groundwater" for "surface or ground water" to conform terminology to proper grammatical usage. At the beginning of par. IV, substituted "division" for "commission" pursuant to

CROSS REFERENCES
Liability for contamination by hazardous materials or toxic wastes of police, fire, emergency preparedness or emergency response equipment, see RSA 154:8-a.

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OSWER Directive 9650.15

146-C:12 Federal Assistance and Private Funds. To implement this chapter, the division is authorized on behalf of the state, with the approval of the governor and council, to apply for and accept any federal assistance which may become available for the purpose of this chapter, whether in the form of loan or grant or otherwise, to accept the provision of any federal legislation for such assistance, to enter into, act, and implement contracts in connection with such assistance, or to act as agent for the federal government in connection with such assistance. The division shall adopt rules pursuant to RSA 541-A for accepting and distributing funds from the leaking underground storage tank trust fund established by 26 U.S.C. section 9508. Pending adoption of such rules, where federal assistance is made available, the project shall be implemented in accordance with applicable federal law, the regulations adopted under such law, and the contract or contracts providing for federal assistance, notwithstanding any contrary provision of state law. The division may also utilize any private funds which may be made available for the purposes of this chapter.

HISTORY
Source, 1986, 182:1. 1988, 249:16, eff. June 29, 1988.

"""""""""Amendments-1988. Rewrote the first sentence, added the second sentence and inserted "pending adoption of such rules" preceding "where federal" and substituted "implemented" for "carried out" preceding "in accordance" and "adopted under such law" for "thereunder" following "the regulations" in the third sentence. Revision note. In the first and third sentences, substituted "division" for "commission" pursuant to 1986, 202-6, II.

 

[ Directive 9650.15 ]

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