Is Your Snow Removal Contract Ready?

As the calendar flips toward December, many of you are either contemplating or have already secured a snow removal contractor for the winter ahead and executed a contract for snow removal. Two years ago, New Hampshire passed, as part of the annual budget bill, Chapters 489-C and 508 of the New Hampshire RSAs, collectively referred to as the “Salt Applicator Statutes.”

The Salt Applicator Statutes have two components. The first component is adopted in Chapter 489-C and allows a “commercial applicator” to obtain a certification from the state acknowledging that the commercial applicator is applying salt as efficiently as possible. A commercial applicator is any person who applies salt to roadways, parking lots or sidewalks for the purpose of winter maintenance.  In order to be certified by the state, a commercial applicator must first participate in training from a certified course that covers topics such as the appropriate way to calibrate a machine that applies salt, the application rates of salt and salt alternatives depending on weather conditions, effective plowing techniques, and new technologies for de-icing and anti-icing. Once a certificate is obtained, that commercial applicator becomes a certified commercial applicator.

A certified commercial applicator must comply with certain reporting requirements, including reporting the amount of salt and salt brine used in a season, the town in which the salt was applied, and the total amount of area over which the salt or salt brine was applied. There is an opportunity to obtain a “master certificate” for those companies that employ several commercial applicators. The master certificate allows the entity or a supervisor to obtain a certificate and obligates them to oversee all the other commercial applicators within the company and to ensure that all the reporting is properly carried out. The purpose of Chapter 489-C, as outlined in the promulgated regulations, is to curb the amount of salt that is applied in the winter in order to better protect water quality in the state of New Hampshire.

The second component of the Salt Applicator Statutes is embodied in Chapter 508 and provides limited liability for certified commercial applicators and those landowners who hire certified commercial applicators to maintain their property. By the express words of the statute, certified commercial applicators and landowners who hire certified commercial applicators will not be liable for hazards caused by ice or snow if the injury is a result of the work performed by a certified commercial applicator and their exercise of best management practices adopted by the Department of Transportation and the Department of Environmental Services. The liability protection does not extend to those hazards that are not removed or mitigated as a result of gross negligence or reckless disregard of the hazard.

To preserve such limited liability protection, the certified commercial applicator or landowner who hires a certified commercial applicator to maintain their property must keep a written record that describes its winter property maintenance practices. The record must include the type and rate of application of salt and other de-icing materials, the dates of treatment, and the weather conditions for each event requiring application of salt or de-icing materials. This recordkeeping requirement is separate from, and more robust than, the reporting requirement pursuant to Chapter 489-C.

The value in these Salt Applicator Statutes for the business owner is the limited liability protection that Chapter 508 provides. However, as explained above, to maintain that limited liability protection, records must be kept and that responsibility falls on either the landowner or the certified commercial applicator.

From the certified commercial applicator’s standpoint (who is looking to achieve liability protection for himself) it makes sense to keep their own records to preserve their liability protection. When a landowner hires a certified commercial applicator to achieve limited liability protection, it makes sense for the landowner to maintain the records for peace of mind. However, much of the information that is needed for the records is likely not available to the landowner, such as the application rate of the salt. Therefore, for efficiency, it makes sense that the certified commercial applicator would maintain the records for the landowner’s property because he or she will have the necessary information to complete the records. However, a failure on the part of the certified commercial applicator’s part to keep the necessary records could potentially cause the landowner to forfeit his or her limited liability protection. It is therefore very important that, when contracting between a landowner and certified commercial applicator, the parties allocate responsibility efficiently and provide for remedies and protections should either party fail to fully execute their duties under the agreement.