Water Problems? Legal Solutions!
If your drinking water is contaminated with gasoline or other petroleum products, there are many
ways to get help. Due to the risks associated with petroleum products, the storage of any
petroleum, be it gasoline, oil or kerosene, is heavily regulated by the State.
The most common method of petroleum storage is in underground storage tanks. State law
requires that underground storage tanks be tested periodically, and replaced if leaks are
discovered. Even if a leak is not discovered, all tanks twenty-five years or older must be
removed.
All underground storage tanks must be registered with the state through the Department of
Environmental Services (DES). When property containing underground storage tanks is sold, the
registration must be transferred into the name of the new owner. Records are kept on file with
the state as to the location and status of all underground storage tanks in the state. You can write
to the DES or call to learn more about underground storage tanks on your property or on the
property of a neighbor.
If you suspect your drinking water has been contaminated, you should contact the DES. The
state will test your water and perform an initial investigation of potential sources of the
contamination. You may also contact a private water testing company to test your water for a
fee. Note that often, you may not smell or see any contaminants.
If you are the owner of a leaking underground storage tank, the State will order that you
investigate the scope of the spill, and will require you to remove any residual petroleum from the
soil, groundwater or surface water. If the petroleum has affected a neighbor's property and/or
drinking water supply, you may be liable for damages. The good news is that to the extent you
do not have insurance coverage, the State has established a fund to reimburse certain out of
pocket expenses associated with the cleanup of contaminated property. In addition, that same
fund may reimburse you for any judgment issued against you for damages caused by the
petroleum.
If, on the other hand, you find that your drinking water or property has been affected by a
neighbor's petroleum storage tank, there are statutory and common law theories which may allow
you to recover damages from your neighbor. This is most common in situations where a
residence abuts a gas station which has experienced a leak from its gasoline storage tanks.
If you smell or taste gasoline in your water, you should immediately contact the State. If the
source is coming from off-site, they will investigate and order the offending party to prevent
future leakage. This may not, however, stop your drinking water problem. Contaminants may
remain in your water supply for possibly years to come. New Hampshire law recognizes several
statutory and common law theories that are available to homeowners when their property is so
damaged.
Negligence
One theory is that the person responsible for the damage owes you a duty of reasonable care to
other people to avoid damaging their property. If the person breached this duty of care, and
failed to take reasonable steps to avoid their tanks from leaking, then the person could be held
liable for damages under the theory of negligence.
To prevail on this theory, a property owner would have to show that someone owed him a duty of
reasonable care, that the duty of care was not exercised properly, and that the failure to exercise
the duty of care resulted in harm.
State Statutes
Several specific New Hampshire statutes provide for clean-up, money damages and penalties if
your water has been contaminated.
Nuisance
Nuisance is another theory available to property owners in an effort to recoup their loss attributed
to contamination. A nuisance exists when an activity substantially and unreasonably interferes
with the use and enjoyment of another's property. To constitute a nuisance, the person's
activity must cause harm that exceeds the customary interference that can be expected on one's
property. Generally, gasoline in the drinking water will interfere with the use of one's property.
Trespass
Another theory available to property owners is trespass. Trespass in not limited to the improper
movement onto another's land. It has been expanded to include cases where things move onto
another's land. Trespass is the foundation of many environmental laws dealing with pollution
or contamination that moves onto another's property. Even noise and odor cam trespass onto
another's property.
Strict Liability
Strict Liability is liability without fault. Even if no one technically did anything wrong, the law
recognizes that some activities are so heavily regulated or so dangerous that damages arising out
of those activities are recoverable. Due to the dangerous nature of gasoline or petroleum storage,
some courts will recognize liability based on strict liability.
These are just some of the issues that arise when you detect gasoline in your water. Assistance is
available to both owners of storage tanks and to those affected by such tanks. Numerous
legislative remedies and funds are available to assist both sides of these issues. Therefore, both
those affected by the tanks and those with tanks should learn more about their rights and
remedies which are available through the state agencies and the Courts.
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