Bill Text: NH HB1591 | 2018 | Regular Session | Introduced


Bill Title: Relative to a private right of action for toxin exposure.

Spectrum: Slight Partisan Bill (Democrat 4-2)

Status: (Introduced) 2018-03-06 - Inexpedient to Legislate: Motion Adopted Regular Calendar 232-98 03/06/2018 House Journal 6 P. 97 [HB1591 Detail]

Download: New_Hampshire-2018-HB1591-Introduced.html

HB 1591 - AS INTRODUCED

 

 

2018 SESSION

18-2376

06/04

 

HOUSE BILL 1591

 

AN ACT relative to a private right of action for toxin exposure.

 

SPONSORS: Rep. Messmer, Rock. 24; Rep. McConnell, Ches. 12; Rep. Cushing, Rock. 21; Rep. Fraser, Belk. 1; Sen. Fuller Clark, Dist 21; Sen. Cavanaugh, Dist 16

 

COMMITTEE: Judiciary

 

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ANALYSIS

 

This bill establishes:

 

I.  A private right of action for equitable or declaratory relief for violation of any solid waste or hazardous waste permit.

 

II.  Strict liability for the release of toxic substances.

 

III.  A private right of action for medical monitoring damages.

 

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

18-2376

06/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Eighteen

 

AN ACT relative to a private right of action for toxin exposure.

 

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

 

1  New Chapter; Private Right of Action for Hazardous Waste Violations.  Amend RSA by inserting after chapter 147-F the following new chapter:

CHAPTER 147-G

PRIVATE RIGHT OF ACTION FOR HAZARDOUS WASTE VIOLATIONS

147-G:1  Definitions.  In this chapter:

I.  "Commissioner" means the commissioner of the department of environmental services.

II.  "Department" means the department of environmental services.

147-G:2  Private Right of Action.  

I.  Any person may commence a civil action for equitable or declaratory relief on the person's own behalf against the following:

(a)  Any person who is alleged to be in violation of any permit, regulation, condition, requirement, prohibition, or order issued or required under RSA 147-A, or RSA 149-M.

(b)  Any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of a solid waste or hazardous waste that may present an imminent and substantial endangerment to health or the environment, including any past or present generator, past or present transporter, or past or present owner or operator of a facility.

(c)  The commissioner of the department of environmental services when there is an alleged failure of the commission to perform any act or duty under RSA 147-A or RSA 149-M that is not discretionary.

II.  No action under paragraph I shall be commenced prior to 60 days after the plaintiff has given notice of the violation to:

(a)  The commissioner;

(b)  Any person alleged to be in violation of the applicable permit, regulation, condition, requirement, prohibition, or order; and

(c)  Where applicable, any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste.

III.  No person shall commence an action under paragraph I if:

(a)  The commissioner or the attorney general has commenced and is prosecuting a civil or criminal action to require compliance with a permit, regulation, condition, requirement, prohibition, or order issued or required under RSA 147-A or RSA 149-M.

(b)  The alleged violator is engaging in a remedial action.

(c)  The alleged violator has incurred costs to initiate a remedial action and is proceeding with the remedial action.

(d)  The commissioner has obtained an administrative order, including an assurance of discontinuance, under RSA 147:11 pursuant to which a responsible party is conducting a removal action, remedial investigation, or remedial action.

IV.(a)  Any person may intervene as a matter of right when the person seeking intervention claims an interest relating to the subject of the action and he or she is so situated that the disposition of the action may, as a practical matter, impair or impede his or her ability to protect that interest, unless the commissioner shows that the applicant's interest is adequately represented by existing parties.

(b)  The commissioner or the attorney general may intervene as a matter of right as a party to represent its interests.

V.  Any person bringing an action under paragraph I shall provide the notice required under paragraph II in writing.  The notice shall be served on the alleged violator in person or by certified mail, return receipt requested.  The notice to the commissioner shall be served by certified mail, return receipt requested.  The notice shall include a brief description of the alleged violation and identification of the statute, rule, permit, assurance, or order that is the subject of the violation.

VI.  The court may award costs, including reasonable attorney's fees and fees for expert witnesses, to a person bringing an action under this section.

VII.  Nothing in this section shall be construed to impair or diminish any common law or statutory right or remedy that may be available to any person.  Rights and remedies created by this section shall be in addition to any other right or remedy, including the authority of the state to bring an enforcement action separate from an action brought under this section.  No determination made by a court in an action maintained under this section, to which the state has not been a party, shall be binding upon the state in any enforcement action.

Liability for Exposure to Toxic Substances

147-G:3  Definitions.  In this subdivision:

I.  "Harm" means any personal injury or property damage.

II.  "Release" means any intentional or unintentional, permitted or unpermitted, act or omission that allows a toxic substance to enter the air, land, surface water, groundwater, or any other place where the toxic substance may be located.

III.  "Toxic substance" means any substance identified as toxic or hazardous under state or federal law, or mixture thereof, or any other substance that has been shown at any time to cause increased risk of disease.

147-G:4  Liability for Exposure to Toxic Substances.  

I.  Any person who releases a toxic substance shall be held strictly, jointly, and severally liable for any harm resulting from such release.

II.  Any person held liable under paragraph I shall have the right to seek contribution from any other person who caused or contributed to the release.  The right to contribution under this paragraph shall include the right to seek contribution from a chemical manufacturer that failed to warn a person of a toxic substance's propensity to cause the harm complained of.

III.  Nothing in this subdivision shall be construed to supersede or diminish in any way existing remedies available to a person at common law or under statute.

Medical Monitoring Damages for Exposure to Toxic Substances

147-G:5  Definitions.  In this subdivision:

I.  "Disease" means any ailment, or adverse physiological or chemical change linked with exposure to a toxic substance.

II.  "Exposure" means ingestion, inhalation, contact with the skin or eyes, or any other physical contact.

III.  "Medical monitoring damages" means the cost of medical tests or procedures and related expenses incurred for the purpose of detecting latent disease resulting from exposure.

IV.  "Toxic substance" means any substance identified as toxic or hazardous under state or federal law, or mixture thereof, or any other substance that has been shown at any time to cause increased risk of disease.

147-G:6  Medical Monitoring Damages.  

I.  Any person may recover medical monitoring damages from exposure to a toxic substance resulting from another's tortious conduct with or without a present injury or disease if such person shall prove by a preponderance of the evidence that:

(a)  The person was exposed to a toxic substance.

(b)  There is a probable link between exposure to the toxic substance and a disease or diseases.

(c)  The person's exposure is the result of another's tortious conduct, including negligence, battery, strict liability, trespass, or nuisance.

(d)  The person's exposure to the toxic substance increases the risk of developing a disease.  A person shall not need to prove that the disease is certain or likely to develop as a result of the exposure.

(e)  Diagnostic testing is reasonably necessary.  Testing is reasonably necessary if a physician would prescribe such testing for the purpose of detecting or monitoring the disease.

(f)  Medical tests or procedures exist to detect the latent disease.

II.  The court shall either place the award of medical monitoring damages into a court-supervised program administered by medical professionals or award lump sum damages.

III.  If a court places an award of medical monitoring damages into a court-supervised program pursuant to paragraph II, the court shall also award attorney's fees and costs to the plaintiff.

IV.  Nothing in this subdivision shall be deemed to preclude the pursuit of any other civil or injunctive remedy available under statute or common law, including the right of any person to recover for damages related to the manifestation of a latent disease.  The remedies in this chapter are in addition to those provided by existing statutory or common law.

2  Effective Date.  This act shall take effect January 1, 2019.

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