The intent of HB 1797 is to prevent undue harm to New Hampshire citizens from exposure to pollution from chemicals mishandled by companies. Rep. McConnell, through careful research (and citing NHPR), has shown a possible motivation of St. Gobain to move its operations to New Hampshire from Vermont because our state has less stringent air and water pollution control requirements. Who, then, should pay when air and water – public resources that are critical to human health – are contaminated? It seems very reasonable that corporations like St. Gobain should pay. Or, per the intent of HB 1797, with the 50% surcharge requirement, that these companies do not pollute in the first place.
Why is a new law needed? Why not rely on the courts? We know that a major tenet of common law is that no person (or corporation) has the right to do *whatever* they want on their property if it causes harm or interferes with the enjoyment of another’s property. A person (or corporation) can’t just open a trash dump in their front yard; any neighbor could sue for interference with the enjoyment of their property. This is known as a nuisance tort. Citizens can sue to stop the nuisance and/or financial compensation. Additionally, chemical companies are subject to another level of tort law – strict liability – because their “activities” of choice (producing chemicals) are considered inherently harmful (i.e., negligence of the part of the company does not need to be shown). If there is case of perflourinated compunds (PFC’s) in the water, we KNOW it came from the chemical company or a landfill and that’s all we need to know with strict liability. The polluter must pay.
So in theory, a nuisance tort (and strict liability) should be enough incentive to motivate companies to a high standard of environmental protection. But in practice, while citizens certainly have the right to sue, corporations have access have the best lawyers. For every story of Erin Brockovich, there are countless other cases that never make it to a jury. It is extremely difficult for citizens to amass the legal firepower and technical expertise to show that there are sufficient quantities of a chemical causing an exposure in the environment, causing a specific health effect. In the courts, one toxicologist may argue with another about subtle differences in study design, and this type of expert vs. counterexpert testimony is unpredictable: it comes down to, who is more believable?
Since most citizens cannot organize and afford to engage in these kinds of lawsuits, the government should step in with regulatory protection of air and water resources. HB 1797 was written with this intent.
But the Majority committee opinion has a point that HB 1797 may be too broad as written. The Majority argues that an accidental oil spill on a highway shouldn’t be penalized against a mom and pop company when the truck goes off the road (making a hypothetical $20,000 fine now a $30,000 fine). The way the bill is written, many “standard” noncompliance violations (i.e., a hospital forgot to date the start of its hazardous waste storage time) would be, in theory, subject to this bill. So the Majority has a point that the bill could be perceived as business unfriendly.
However, why can’t HB1797 be modeled after CERCLA (the Comprehensive Environmental Response Compensation and Liability Act) – kind of a CERCLA –lite? In other words, HB1797 can be written (or rewritten at this point) to apply strict liability so that when “harmful quantities of chemicals are released”, the responsible party must provide for cleanup and a 50% surcharge for the State’s time and effort on top of the cleanup. NHDES would be given the authority (similar to EPA’s authority) to determine when “harmful quantities of chemicals are released” (thus preserving the NHDES’ mission). And if the Majority on the Committee do not like the money going to the NH General Fund, the bill can set up a new fund for “Environmental Protection” (similar to EPA’s SUPERFUND) so that NHDES can manage and clean up environmental contamination.
The argument by the Majority that polluters would try to find the cheapest way to clean up the mess doesn’t hold water because the cleanup has to meet EPA (or NHDES) standards anyway. The NHDES would deem the cleanup unacceptable otherwise (which they have done in the past).
To the Majority concern that the surcharge would not be covered by insurance - yes, that it the point! This fact incentivizes companies to not pollute. But again, to the Majority concern, NHDES *decides* if the “harmful level” has been exceeded. CERCLA sets a precedent for this kind of state authority, as states like New Jersey have more stringent regulations to prevent spills (modeled after CERCLA and the CWA). I would encourage HB 1797 to be rewritten in a similar way.
NH Science for Citizens
Department of Environmental Studies
Keene State College
Keene, NH 03431
A project of students and faculty at Keene State College in collaboration with local NH state representatives.