NH Supreme Court Says Unlawful Operation Of Solid Waste Facility Or Septic System Can Result In Criminal Penalties

by Pierce Atwood LLP
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On March 20, 2013, the New Hampshire Supreme Court issued a decision in State v. Guay, holding that the defendant’s unlawful operation of a solid waste facility or septic system can result not just in civil fines, but also in criminal penalties.  This decision clarifies an ambiguity in New Hampshire law, and increases the need for diligence in complying with state requirements when operating a solid waste facility or septic system.

The case began when an investigator from the New Hampshire Department of Environmental Services (DES) discovered numerous buried objects on two of the defendant’s properties.  These items included a 275-gallon home heating oil tank, carpeting, old mattresses, foam insulation, and sheetrock.  An investigation of one of the properties also revealed liquid on top of the defendant’s septic system and a garden hose attached to a sump pump that channeled untreated brown water from a septic tank, bypassing the leach field and discharging liquid in the direction of a river.

Based on the DES investigator’s discoveries, the State charged the defendant with three misdemeanors: two counts of unlawful operation of a solid waste facility and one count of unlawful maintenance of a septic system.

One of the main issues on appeal concerned whether NH RSA 485-A:37, the statute prohibiting unlawful operation of a solid waste facility or septic system, allowed for criminal penalties, as opposed to merely civil fines.  The plain language of RSA 485-A:37 provides that persons who operate a solid waste facility or septic system in violation of that chapter are subject to penalties provided in RSA 485-A:43, IV, which provides only for a civil fine up to $1,000 per day.  The defendant thus argued that the State was precluded from filing criminal charges by the plain language of the statute.  The State pointed to RSA 485-A:43, I, which provides that any person who violates a provision of that subdivision is guilty of a misdemeanor, and argued that defendants could be subject to both civil fines and criminal penalties.

While it acknowledged an ambiguity in the statute, the Court ultimately sided with the State, and declared that defendants who are guilty under RSA 485-A:37 of unlawful operation of a solid waste facility or septic system can be subject to both civil fines and criminal penalties.  The Court said that to hold otherwise would be “inconsistent with the statute’s purpose to protect water supplies, to prevent pollution in the surface and ground waters of the state and to prevent nuisances and potential health hazards.”

In the wake of Guay, it will be more important than ever for operators of solid waste facilities or septic systems to ensure that those facilities or systems are operated in compliance with state law.  Failure to do so can now clearly result in both civil and criminal penalties.  If you have further questions or concerns about the implications of this holding going forward, please do not hesitate to contact Matt Manahan (207-791-1189 or mmanahan@pierceatwood.com) or John Formella (603-373-2010 or jformella@pierceatwood.com).  For more frequent updates, follow the Pierce Atwood Environmental Practice Group on Twitter @PierceAtwoodEnv.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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