The New Hampshire Attorney General's office says it will not be prosecuting KeySpan Energy Delivery for failing to report the Liberty Hill coal tar contamination site to the state when it first had knowledge.
Despite evidence that KeySpan knew of coal tar contamination on Liberty Hill in Gilford years before it disclosed the information to the New Hampshire Department of Environmental Services, an investigation by the Attorney General's office concluded the gas utility did not violate its legal duty to report knowledge of a hazardous waste site.
According to a letter dated Tuesday and signed by Assistant Attorney General Even Mulholland, KeySpan did not violate RSA 147-A: 11 "because the discharge at the Liberty Hill site occurred in 1952, predating the enactment of New Hampshire's hazardous waste laws, this discharge could not have been in violation of RSA Chapter 147-A."
The matter of KeySpan's nondisclosure came to the attention of the Attorney General's office following an investigative report by The Citizen which revealed that information about Liberty Hill was contained in a federal court lawsuit predating KeySpan's disclosure.
Mulholland's letter came as a response to a letter from KeySpan Attorney Bruce Felmly. Felmly also represented KeySpan in the 2004 federal court lawsuit that sparked the investigation.
RSA 147-A: 11 reads, "any generator, owner, operator, transporter, or employee of hazardous waste facility who becomes aware of any storage, treatment, or disposal of hazardous waste in violation of this chapter (Chapter 147-A-Hazardous Waste Management) shall immediately report the violation to the department."
Mulholland, as outlined in his letter, based his determination on the "in violation of this chapter" wording of the statute.
However, the state's investigation turned up several pieces of evidence that proved KeySpan "had knowledge of the most likely locations of the 1952 discharge" years before it disclosed the information to the DES on October 19, 2004, years after the establishment of RSA 147-A.
Depositions for the EnergyNorth Natural gas, Inc. v. Underwriters at Lloyd's, London lawsuit, which referenced the Liberty Hill location and contamination, were taken in 1998 and 1999 — nearly five years before it was officially disclosed.
The first piece of evidence listed by the Department of Justice is the 1998 deposition of former EnergyNorth Natural Gas employee Charlie Simmons.
"During that deposition Mr. Simmons states that he recalled that after the explosion of the Messer Street plant, a mixture of coal tar and water was discharged into a gravel bank on land owned by Wilfred Gilbert on Liberty Hill in Laconia. Mr. Simmons personally witnessed the discharge and indicated that the discharge was located approximately 'three quarters of the way to the top' of the hill."
The Sylivio J. Morin v. Gas Services Inc. lawsuit was also referenced, as it involved the direct abutter to the coal tar contamination site on Liberty Hill, Morin, and the alleged contamination to his property. KeySpan investigators were able to turn up this suit prior to December 2001.
When KeySpan was in the process of purchasing EnergyNorth, according to the state, an internal evaluation of manufactured gas sites was performed. From that review the Liberty Hill site was once again revealed.
"In December 2001, GEI (Consultants) reviewed relevant deeds and record at the Gilford Assessing Office and determined the location of the Morin property that had been the subject of the 1956 lawsuit."
Though no legal action will be taken, the Attorney General's office determined, "prior to October 2004, KeySpan had knowledge of sufficient facts to conclude that there was a high likelihood that a large quantity of coal tar was discharged on Liberty Hill in Gilford in 1952. KeySpan had, prior to October 2004, knowledge of the most likely location of the 1952 discharge."
Coal tar contamination on Liberty Hill is the result of an explosion of a manufactured gas plant on Messer Street in Laconia in 1952. At the time Gas Services Inc, a predecessor of KeySpan and EnergyNorth, disposed of the material in an old gravel pit. National Grid, another energy utility, currently owns KeySpan.
Despite the evidence referenced by the Attorney General's office, National Grid spokesman David Graves had previously insisted that there was no prior knowledge of the contamination site prior to the Oct. 19, 2004 disclosure date. When contacted, Graves declined to clarify his previous statements, referring comments to the company's legal department.
The state's evidence of KeySpan's prior knowledge and the lack of legal recourse has left town officials stunned.
When asked, members of Gilford's Board of Selectmen said they planned on contacting the town's environmental attorney, Jeff Meyers, to discuss the matter.
The Attorney General's office does plan on aiding in steps to clarify the law in light of this case.
"Given the potential risk to human health of unreported discharges of hazardous waste, the Department of Justice will support legislation to be proposed by the Commissioner of DES in the next session to extend the duty to report to all persons who have knowledge of the disposal of hazardous material even when that disposal occurred prior to the enactment of RSA Chapter 147-A."
