Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S511 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	SENATE DOCKET, NO. 1329 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 511
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Edward J. Kennedy
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to liability for release of hazardous materials.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Edward J. KennedyFirst Middlesex 1 of 5
16	16	SENATE DOCKET, NO. 1329 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 511
18	18	By Mr. Kennedy, a petition (accompanied by bill, Senate, No. 511) of Edward J. Kennedy for
19	19	legislation relative to liability for release of hazardous materials. Environment and Natural
20	20	Resources.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 4898 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to liability for release of hazardous materials.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Section 2 of chapter 21E of the General Laws, as appearing in the 2020
32	32	2Official Edition, is hereby amended by striking out the definition of “Condition of substantial
33	33	3release migration” and inserting in place thereof the following definition:-
34	34	4 “Condition of substantial release migration”, (a) a release of oil or hazardous material
35	35	5that is likely to be transported through environmental media where the mechanism, rate or extent
36	36	6of transport has resulted in or, if not promptly addressed, has the potential to result in: (1) health
37	37	7damage, safety hazards or environmental harm; or (2) a substantial increase in the extent or
38	38	8magnitude of the release, the degree or complexity of future response actions, or the amount of
39	39	9response costs. 2 of 5
40	40	10 (b) Conditions of substantial release migration shall include, but not be limited to:
41	41	11 (1) releases that have resulted in the discharge of separate-phase oil or separate-phase
42	42	12hazardous material to surface waters, buildings or underground utilities or conduits;
43	43	13 (2) releases to the ground surface or to the vadose zone that, if not promptly removed or
44	44	14contained, are likely to significantly impact the underlying groundwater or significantly
45	45	15exacerbate an existing condition of groundwater pollution;
46	46	16 (3) releases to the groundwater that have migrated or are expected to migrate more than
47	47	17200 feet per year;
48	48	18 (4) releases to the groundwater that have been or are within 1 year likely to be detected in
49	49	19a public or private water supply well;
50	50	20 (5) releases to the groundwater that have been or are within 1 year likely to be detected in
51	51	21a surface water body, wetland or public water supply reservoir;
52	52	22 (6) releases to the groundwater or to the vadose zone that have resulted in or have the
53	53	23potential to result in the discharge of vapors into a school, daycare or child care center or
54	54	24occupied residential dwelling at concentrations greater than indoor air threshold values for the
55	55	25evaluation of a vapor intrusion pathway as established by the department; provided, that
56	56	26conditions that indicate a potential discharge of vapors into a school, daycare or child care center
57	57	27or occupied residential dwelling shall include, but shall not be limited to:
58	58	28 (i) soil or soil gas impacted with 1 or more volatile organic compounds within 6 feet,
59	59	29measured horizontally from the wall of the structure, and within 10 feet measured vertically from 3 of 5
60	60	30the basement floor or foundation at concentrations that are likely to discharge vapors into the
61	61	31structure;
62	62	32 (ii) 1 or more volatile organic compound in the groundwater exceed the applicable
63	63	33Groundwater Category GW-2 Standard within 30 feet of the structure, and the average annual
64	64	34depth to groundwater in that area is 15 feet or less;
65	65	35 (iii) volatile light non-aqueous phase liquid is present in a groundwater monitoring well,
66	66	36excavation, or subsurface depression within 30 feet of the structure at a measured thickness equal
67	67	37to or greater than 1/8 inch or .01 feet; or
68	68	38 (iv) evidence of vapor migration along preferential pathways at a location that is likely to
69	69	39result in the discharge of vapors into the structure; or
70	70	40 (7) any release for which a notification has been required by the department.
71	71	41 (c) Any person required to notify the department pursuant to section 7 shall notify the
72	72	42department of such condition upon obtaining knowledge thereof and shall take any appropriate
73	73	43and feasible response actions as may be required by the department. Notwithstanding any general
74	74	44or special law to the contrary, the department shall not use any other definition of condition of
75	75	45substantial release migration.
76	76	46 SECTION 2. Said section 2 of said chapter 21E, as so appearing, is hereby further
77	77	47amended by inserting, after the definition of “Contain”, the following definition:-
78	78	48 “Critical exposure pathways”, those routes by which oil or hazardous material released at
79	79	49a disposal site are transported, or are likely to be transported, to human receptors via: (i) vapor-
80	80	50phase emissions of oil or hazardous materials into the living or working space of a pre-school, 4 of 5
81	81	51daycare, school or occupied residential dwelling at concentrations greater than indoor air
82	82	52threshold values for the evaluation of a vapor intrusion pathway as established by the
83	83	53department; or (ii) ingestion, dermal absorption or inhalation of measurable concentrations of oil
84	84	54or hazardous materials from drinking water supply wells located at and servicing a pre-school,
85	85	55daycare, school or occupied residential dwelling.
86	86	56 SECTION 3. Section 5C of said chapter 21E, as so appearing, is hereby amended by
87	87	57adding the following subsection:-
88	88	58 (l) A department audit of response actions at the site or portion of the site owned or
89	89	59operated by an eligible person, as delineated in a waste site cleanup activity opinion, for which a
90	90	60permanent solution or remedy operations status exists and is maintained or has been achieved
91	91	61and maintained in accordance with such opinion, which (i) identifies no violations of this chapter
92	92	62and regulations promulgated thereto, or (ii) if such violations are identified, such violations are
93	93	63promptly corrected, shall be deemed conclusive evidence that the eligible person has no liability,
94	94	64and the department may take no action as to such eligible person, for any releases at any property
95	95	65not previously identified as part of the site or any other disposal site. Notwithstanding any
96	96	66general or special law to the contrary, the department shall not promulgate regulations relative to
97	97	67this subsection.
98	98	68 SECTION 4. (a) Notwithstanding any general or special law to the contrary, no person
99	99	69shall be liable for any substantial release migration at any property not previously identified as
100	100	70part of a disposal site or any other disposal site if the department of environmental protection:
101	101	71 (i) has, at any time before the effective date of this act, performed an audit of response
102	102	72actions at a site, or a part of a site; and 5 of 5
103	103	73 (ii)(1) has determined that a permanent solution or remedy operations status was achieved
104	104	74and maintained in accordance with a waste site cleanup activity opinion or any other notification
105	105	75to such person; or (2) has notified such person that a violation of chapter 21E of the General
106	106	76Laws or any regulation was identified and promptly corrected.
107	107	77 (b) The department of environmental protection shall have no defense in any action or
108	108	78claim, nor shall the department present evidence to contest liability of an eligible person, upon a
109	109	79showing that a permanent solution or remedy operations status was achieved and maintained.