SB519 (2008) Detail

Imposing a per diem fine on dam owners and operators for failure to repair damage.


CHAPTER 272

SB 519-FN – FINAL VERSION

03/06/08 0696s

16Apr2008… 1303h

15May2008… 1687h

2008 SESSION

08-2678

08/01

SENATE BILL 519-FN

AN ACT imposing a per diem fine on dam owners and operators for failure to repair damage.

SPONSORS: Sen. Cilley, Dist 6; Sen. DeVries, Dist 18; Sen. Fuller Clark, Dist 24; Rep. Nord, Rock 1

COMMITTEE: Energy, Environment and Economic Development

AMENDED ANALYSIS

This bill imposes a fine on dam owners and operators for failure to repair damage.

This bill also establishes a fund for revolving loans for dam maintenance.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/06/08 0696s

16Apr2008… 1303h

15May2008… 1687h

08-2678

08/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT imposing a per diem fine on dam owners and operators for failure to repair damage.

Be it Enacted by the Senate and House of Representatives in General Court convened:

272:1 Orders. Amend RSA 482:11 to read as follows:

482:11 Orders.

I. The department may order the owner or contractor, while constructing or reconstructing any such dam, to remedy any defects caused by failure to comply with the requirements of the plans and specifications or to do anything necessary to make said construction comply with said plans and specifications, and on failure to comply with any such order, the department may order all work of construction on such dam to cease and may take any other action authorized by RSA 482:89.

II. The commissioner may issue an order to any person who violates this chapter as specified in RSA 482:89, I, and require such remedial or restorative measures as may be necessary. Any order issued by the department pursuant to this chapter may be recorded in the registry of deeds for the county in which the subject facility is situated. A recorded order shall run with the land; provided, that an appropriate description of the land involved including the accurate name of the owner thereof is included in the order. No fee shall be charged for recording an order; however, a fee may be charged for discharging an order.

III. If the department finds that an emergency exists requiring immediate action to protect the public safety, it may issue an order stating that an emergency exists and requiring that such action be taken as necessary to meet the emergency. Any person to whom such an order is directed shall comply immediately, but may appeal to the water council established under RSA 21-O:7.

272:2 Maintenance of Dams; Failure to Comply. Amend RSA 482:12 to read as follows:

482:12 Inspecting Dams, Repairs, Emergency Action Plans.

I. It shall be the duty of the department from time to time to cause all dams in the state which, by reason of their condition, height or location, may be a menace to the public safety to be inspected by competent engineers.

II. If the inspection indicates that maintenance or repair are required to comply with RSA 482:11-a or the public safety requires the repair or reconstruction of any [such] dam or the development of an emergency action plan, the department shall order the owner of the dam to [make] undertake the requisite maintenance, repairs, or reconstruction and to develop the emergency action plan within a period to be fixed by the order.

272:3 Penalties. RSA 482:89 is repealed and reenacted to read as follows:

482:89 Penalties.

I. The following shall constitute a violation of this chapter, with each day of noncompliance constituting a separate violation:

(a) Failure to comply with any provision of this chapter, any rule adopted to implement this chapter, or any permit issued pursuant to this chapter;

(b) Failure to comply with a written order or directive issued by the department under this chapter;

(c) Failure to answer a subpoena issued under this chapter or to allow the department to examine books, records, documents, correspondence, and accounts relative to dams or to testify before the department as required by this chapter;

(d) Misrepresentation by any person of a material fact made in connection with any activity regulated or prohibited by this chapter; and

(e) Failure to comply with an emergency directive of the department under RSA 482:4.

II. Any person who violates this chapter as specified in paragraph I, and any person who purchases property affected by a violation of this chapter who knew or had reason to know of the violation prior to or at the time of purchase, shall be liable for remediation or restoration of the property affected.

III. Any person who knowingly violates this chapter as specified in paragraph I shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person, and, notwithstanding RSA 651:2, may, in addition to any sentence of imprisonment, probation, or conditional discharge, be fined not more than $20,000 for each violation if found guilty pursuant to this section. Each day of violation shall constitute a separate offense.

IV. Upon petition of the attorney general, the superior court may levy upon any person violating this chapter, as specified in paragraph I, a civil penalty in an amount not to exceed $20,000 for each day of each continuing violation. Upon petition of the attorney general, the superior court or any justice of such court may enjoin any act in violation of this chapter as specified in paragraph I.

V. The commissioner, after notice and hearing pursuant to RSA 541-A, may impose upon any person who violates any provision of this chapter, as specified in paragraph I, an administrative fine not to exceed $2,000 for each violation in addition to other remedies and penalties provided under this chapter. The department shall commence a proceeding under this paragraph against any person who does not respond within 45 days of receipt of a written order, directive, or any notice of needed maintenance, repair, or reconstruction issued by the department. Rehearings and appeals under this paragraph shall be in accordance with RSA 541. The commissioner shall adopt rules, under RSA 541-A, relative to:

(a) A schedule of administrative fines which may be imposed under this paragraph for violation of this chapter as specified in paragraph I; and

(b) Procedures for notice and hearing prior to the imposition of an administrative fine.

VI. The proceeds of any penalties levied pursuant to paragraphs III through V shall be deposited into the dam maintenance revolving loan fund established in RSA 482:55-a.

VII. The provisions of RSA 482:89 shall not apply to actions that are subject to the Federal Power Act (16 U.S.C. sections 791a-825r).

VIII. In determining penalties, the department shall and the superior court may take into consideration all relevant circumstances, including the degree of noncompliance, the extent of harm caused by the violation, the nature and persistence of the violation, the time and cost associated with the investigation by the state, and the economic impact of the penalty on the liable person.

272:4 Penalties. Amend RSA 482:8-a to read as follows:

482:8-a Annual Registration Fee. Annual registration fees for dams shall be payable to the department on January 1 of each calendar year. [Failure to pay the registration fee shall be considered a violation of RSA 482:15.] Yearly dam registration fees shall be based on classification as follows: Low hazard potential = $400; Significant hazard potential = $750; High hazard potential = $1,500. If the hazard classification designated by the Federal Energy Regulatory Commission for a dam differs from the classification designated by the department, the annual dam registration fees shall be based on the classification designated by the Federal Energy Regulatory Commission. Revenues from this annual registration are to be collected by the department and deposited in the dam maintenance fund established in RSA 482:55 to be used for the inspection of dams.

272:5 New Section; Fund Established; Dam Maintenance Revolving Loans. Amend RSA 482 by inserting after section 55 the following new section:

482:55-a Dam Maintenance Revolving Loan Fund Established.

I. A dam maintenance revolving loan fund shall be established to provide low interest loans to fund the maintenance, repair, or reconstruction of privately owned dams when such maintenance, repair, or reconstruction is required under this chapter. This fund shall be nonlapsing and shall be continually appropriated to the department for the purposes of this section. No loans shall be made from this fund until the fund has accrued a balance of at least $25,000. Private dam owners receiving loans from this fund shall repay the department on a time frame specified in rules established by the department. The commissioner shall collect all loan repayment moneys and deposit them in this fund.

II. The department shall establish rules for the fund including the application process, criteria for award, the procedure for making loans, the interest rate to be applied, the maximum loan amount, the time frame for repayment, and oversight of the administration of the fund. In providing loans, the department shall evaluate the risk posed by the dam, the public benefit of the dam, the private benefit of the dam to lakefront owners and the potential for their contribution to needed maintenance, repair, or reconstruction, the financial resources of the applicant, and the relative cost of maintaining, repairing, or reconstructing the dam as compared to removing or breaching the dam.

272:6 Repeal. The following are repealed:

I. RSA 482:15, relative to penalties for noncompliance with orders for dam repairs.

II. RSA 482:79-a, relative to administrative fines for noncompliance with orders for dam repairs.

272:7 Effective Date. This act shall take effect January 1, 2009.

Approved: June 26, 2008

Effective Date: January 1, 2009