Environmental issues are often brought to the attention of town or city officials by citizens complaining about a neighbor or a landlord. It can be difficult to know how to approach these situations. One of the best tools available is often the NH Department of Environmental Services (DES). This case provides an excellent example of the way local and state officials can work together to tackle a difficult environmental case.
The defendant in this case owned two properties in Concord and ran a junk removal business. One of his employees was also a tenant in one of the properties. The tenant contacted the Concord Police Department to report septic system violations at the property where he was living, as well as hazardous materials buried at the other property. The City collaborated with DES in the investigation and obtained search warrants for both properties. A variety of items were found at both locations, buried and above-ground. In addition, a DES investigator who is an expert in subsurface system compliance noticed liquid on top of the septic system at one of the properties. A garden hose was attached to a sump pump, channeling untreated brown water from the septic tank, bypassing the leach field, and discharging it toward a river. The DES investigator tested samples of the liquid and the soil beyond it, and found both contaminated with material from the septic system.
As a result of the joint investigation, the State charged the property owner with three misdemeanors under RSA 485-A: two charges of unlawful operation of a solid waste facility (one for each property), and unlawful maintenance of a subsurface system at the property where the employee lived. Misdemeanors are crimes, and at the jury trial, the defendant was convicted on all three counts.
The defendant appealed his convictions for two reasons. One involved potentially prejudicial statements made by the prosecution, which the Supreme Court dismissed. The other issue, of more interest to municipalities, was whether the defendant could be charged at all for crimes under RSA 485-A:37. His argument was that the exclusive penalty for violations of that provision is civil forfeiture (fines).
To find an answer, the Court had to look at the statute as a whole, using the “plain and ordinary” meanings of the words used. In this case, the statute was written so that any person who “shall violate” any portion of the sewage disposal systems subdivision is guilty of a misdemeanor. RSA 485-A:43, I. This means that a misdemeanor charge may be brought as soon as a violation begins. In contrast, the civil forfeiture portion only kicks in after DES issues a compliance order in writing and the property owner “neglects or refuses” to comply; fines add up for each day of neglect or refusal after the order is issued. RSA 485-A:43, IV. They are, thus, two separate remedies which are not in conflict, and may both be pursued by the State.