SB 413-FN - AS AMENDED BY THE SENATE
04/05/2024 1357s
2024 SESSION
24-2942
08/10
SENATE BILL 413-FN
AN ACT relative to civil actions for PFAS contamination.
SPONSORS: Sen. Ricciardi, Dist 9; Sen. Perkins Kwoka, Dist 21; Sen. Murphy, Dist 16; Sen. Altschiller, Dist 24; Sen. Fenton, Dist 10; Sen. Watters, Dist 4; Sen. Chandley, Dist 11; Rep. B. Boyd, Hills. 12; Rep. Mooney, Hills. 12; Rep. Noble, Hills. 2
COMMITTEE: Judiciary
─────────────────────────────────────────────────────────────────
ANALYSIS
This bill creates a civil action for certain PFAS contamination.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04/05/2024 1357s 24-2942
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to civil actions for PFAS contamination.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph; Hazardous Waste Fund Cleanup. Amend RSA 147-B:2 by inserting after paragraph II-b the following new paragraph:
II-c. "Fully fluorinated carbon atom" means a carbon atom on which all of the hydrogen substituents have been replaced by flourine.
2 New Paragraphs; Hazardous Waste Fund Cleanup. Amend RSA 147-B:2 by inserting after paragraph VIII-i the following new paragraphs:
VIII-j. “PFAS” means all perfluoroalkyl and polyfluoroalkyl substances.
VIII-k. “Perfluoroalkyl substance” means a chemical of which all of the alkyl carbon atoms are fully fluorinated carbon atoms.
VIII-l. “Polyfluoroalkyl substance” means a chemical containing at least one fully fluorinated carbon atom and at least one carbon atom that is not a fully fluorinated carbon atom.
VIII-m. “PFAS facility" means any site, area, or location where PFAS is or has been used in a manufacturing process.
VIII-n. “Manufacturing process” means a process that turns raw materials into a finished product.
3 Strict Liability; Civil Action. Amend RSA 147-B:10, I(d) to read as follows:
(d) Accepts or accepted any hazardous waste or hazardous material for transport to disposal or treatment facilities or sites selected by such person, shall be strictly liable for all costs incurred by the state in responding to a release or threatened release of hazardous waste or hazardous material at or from the facility as specified in paragraph II and shall be strictly liable for containment, cleanup, restoration, or other remediation related to the release or threatened release of hazardous waste or hazardous material in accordance with applicable law and departmental rules.
4 Strict Liability; Civil Action. Amend RSA 147-B:10, III(a) to read as follows:
(a) The attorney general may institute an action before the superior court for the county in which the facility is located against any person liable pursuant to paragraph I of this section to recover all costs incurred by the state or to require containment, cleanup, restoration, or other remediation in accordance with applicable law and departmental rules. Costs recovered under this section shall be deposited into the fund except that costs recovered to offset expenditures made from the drinking water and groundwater trust fund established in RSA 6-D:1 shall be deposited into the drinking water and groundwater trust fund.
5 New Paragraph; Strict Liability; Civil Action; PFAS Facilities. Amend RSA 147-B:10 by inserting after paragraph VII the following new paragraph:
VIII. Any person who owns or operates a PFAS facility where a release or releases of PFAS at or from such PFAS facility have resulted in total combined concentrations in groundwater or surface water of 10,000 ng/l (parts per trillion) or greater of PFAS compounds for which ambient groundwater quality standards have been established pursuant to RSA 485-C, or who owned or operated a PFAS facility at the time of such a release or releases, shall be subject to the provisions of RSA 147-B:10 and RSA 147-B:10-a. However, any public water system as defined by RSA 485:1-a, XV, wastewater treatment plant as defined by RSA 485-A:2, XVI-a, or facility permitted pursuant to RSA 149-M:9 shall be exempt from the provisions of this paragraph. Nothing herein shall be interpreted to limit the applicability of RSA 147-B:10 or RSA 147-B:10-a to releases of PFAS otherwise subject to such sections.
6 New Paragraph; Definitions; Point of Entry Treatment. Amend RSA 485:1-a by inserting after paragraph XIV the following new paragraph:
XIV-a. “Point of entry treatment” or “POET” means a treatment device or system applied to the drinking water entering a house or building for the purpose of reducing contaminants in the drinking water distributed throughout the house or building.
7 New Paragraphs; Enforcement and Penalties; Provision of Safe Drinking Water. Amend RSA 485:58 by inserting after paragraph VII the following new paragraphs:
VIII. Notwithstanding RSA 507:7-e, I-III, and in addition to any other available remedies, where a property owner demonstrates by a preponderance of the evidence that contamination emanating from a PFAS facility subject to RSA 147-B:10, VIII caused contamination of the property owner’s drinking water at a level at or above state or federal maximum contaminant levels, the owner or operator of such PFAS facility shall be jointly and severally liable for:
(a) The provision of safe drinking water to such property owner either in the form of a point-of-entry treatment system capable of treating such PFAS to non-detect levels or, if practicable, a connection to a public water system;
(b) If connection to a public water system is not practicable, the property owner shall also be entitled to the cost of all reasonable operation and maintenance costs needed to ensure that the POET treats such PFAS to non-detect levels; and,
(c) All other reasonable costs including attorneys’ fees related to obtaining compliance with subparagraphs (a) and (b).
IX. A judgment pursuant to paragraph VIII requiring installation of a POET or connection to a public water system, along with associated costs, shall not preclude any other remedies including but not limited to a separate claim for personal injuries caused in whole or in part by the consumption of drinking water contaminated by PFAS.
8 Effective Date. This act shall take effect 60 days after its passage.
24-2942
Amended 4/9/24
SB 413-FN- FISCAL NOTE
AS AMENDED BY THE SENATE (AMENDMENT #2024-1357s)
AN ACT relative to civil actions for PFAS contamination.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
|
| |||||
Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None
| |||||
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund
| |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None
| |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] N/A • Does this bill authorize new positions to implement this bill? [X] No | ||||||
METHODOLOGY:
This bill creates a civil action for certain PFAS contamination. The Judicial Branch states it is not possible to estimate how this change in law would impact the number of filings in the courts. Because available civil actions are expanded, it is expected that litigation would increase. Common costs for civil cases include the following:
Average Costs in Superior Court | FY 2024 | FY 2025 |
Complex Civil Case | $1,321 | $1,347 |
Routine Civil Case | $494 | $504 |
Superior Court Fees | As of 2/12/2020 | |
Original Entry Fee | $280 | |
Third-Party Claim | $280 | |
Motion to Reopen | $160 |
The Department of Justice states most of this bill relates to a new private right of action for PFAS. The bill clarifies the authority of the State to bring actions to require remediation of hazardous waste to ensure that such authority applies not just to “facilities” as described in RSA 147-A but to any spiller of hazardous waste/materials as described in RSA 147-B:2. The Department indicates the bill would have no impact other than a possible savings in litigation costs as the State would not have to present arguments about this authority.
AGENCIES CONTACTED:
Department of Justice and Judicial Branch
| Date | Amendment |
|---|---|
| March 14, 2024 | 2024-1135s |
| March 27, 2024 | 2024-1357s |
| Date | Body | Type |
|---|---|---|
| Jan. 31, 2024 | Senate | Hearing |
| April 4, 2024 | Senate | Floor Vote |
| April 24, 2024 | House | Hearing |
| May 1, 2024 | House | Exec Session |
April 25, 2024: Executive Session: 05/01/2024 10:00 am LOB 206-208
April 16, 2024: Public Hearing: 04/24/2024 10:00 am LOB 206-208
April 10, 2024: Introduced (in recess of) 03/28/2024 and referred to Judiciary HJ 11
April 5, 2024: Ought to Pass with Amendment 2024-1357s, MA, VV; OT3rdg; 04/05/2024; SJ 8
April 5, 2024: Committee Amendment # 2024-1357s, AA, VV; 04/05/2024; SJ 8
March 28, 2024: Committee Report: Ought to Pass with Amendment # 2024-1357s, 04/05/2024; Vote 5-0; CC; SC 13
Jan. 24, 2024: Hearing: 01/31/2024, Room 100, SH, 01:30 pm; SC 5
Dec. 12, 2023: To Be Introduced 01/03/2024 and Referred to Judiciary; SJ 1