Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S583 Compare Versions

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22 SENATE DOCKET, NO. 420 FILED ON: 1/14/2023
33 SENATE . . . . . . . . . . . . . . No. 583
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Bruce E. Tarr
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act relative to liability for release of hazardous materials.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Bruce E. TarrFirst Essex and Middlesex 1 of 5
1616 SENATE DOCKET, NO. 420 FILED ON: 1/14/2023
1717 SENATE . . . . . . . . . . . . . . No. 583
1818 By Mr. Tarr, a petition (accompanied by bill, Senate, No. 583) of Bruce E. Tarr for legislation
1919 relative to liability for release of hazardous materials. Environment and Natural Resources.
2020 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2121 SEE HOUSE, NO. 4898 OF 2021-2022.]
2222 The Commonwealth of Massachusetts
2323 _______________
2424 In the One Hundred and Ninety-Third General Court
2525 (2023-2024)
2626 _______________
2727 An Act relative to liability for release of hazardous materials.
2828 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
2929 of the same, as follows:
3030 1 SECTION 1. Section 2 of chapter 21E of the General Laws, as appearing in the 2020
3131 2Official Edition, is hereby amended by striking out the definition of “Condition of substantial
3232 3release migration” and inserting in place thereof the following definition:-
3333 4 “Condition of substantial release migration”, (a) a release of oil or hazardous material
3434 5that is likely to be transported through environmental media where the mechanism, rate or extent
3535 6of transport has resulted in or, if not promptly addressed, has the potential to result in: (1) health
3636 7damage, safety hazards or environmental harm; or (2) a substantial increase in the extent or
3737 8magnitude of the release, the degree or complexity of future response actions, or the amount of
3838 9response costs.
3939 10 (b) Conditions of substantial release migration shall include, but not be limited to: 2 of 5
4040 11 (1) releases that have resulted in the discharge of separate-phase oil or separate-phase
4141 12hazardous material to surface waters, buildings or underground utilities or conduits;
4242 13 (2) releases to the ground surface or to the vadose zone that, if not promptly removed or
4343 14contained, are likely to significantly impact the underlying groundwater or significantly
4444 15exacerbate an existing condition of groundwater pollution;
4545 16 (3) releases to the groundwater that have migrated or are expected to migrate more than
4646 17200 feet per year;
4747 18 (4) releases to the groundwater that have been or are within 1 year likely to be detected in
4848 19a public or private water supply well;
4949 20 (5) releases to the groundwater that have been or are within 1 year likely to be detected in
5050 21a surface water body, wetland or public water supply reservoir;
5151 22 (6) releases to the groundwater or to the vadose zone that have resulted in or have the
5252 23potential to result in the discharge of vapors into a school, daycare or child care center or
5353 24occupied residential dwelling at concentrations greater than indoor air threshold values for the
5454 25evaluation of a vapor intrusion pathway as established by the department; provided, that
5555 26conditions that indicate a potential discharge of vapors into a school, daycare or child care center
5656 27or occupied residential dwelling shall include, but shall not be limited to:
5757 28 (i) soil or soil gas impacted with 1 or more volatile organic compounds within 6 feet,
5858 29measured horizontally from the wall of the structure, and within 10 feet measured vertically from
5959 30the basement floor or foundation at concentrations that are likely to discharge vapors into the
6060 31structure; 3 of 5
6161 32 (ii) 1 or more volatile organic compound in the groundwater exceed the applicable
6262 33Groundwater Category GW-2 Standard within 30 feet of the structure, and the average annual
6363 34depth to groundwater in that area is 15 feet or less;
6464 35 (iii) volatile light non-aqueous phase liquid is present in a groundwater monitoring well,
6565 36excavation, or subsurface depression within 30 feet of the structure at a measured thickness equal
6666 37to or greater than 1/8 inch or .01 feet; or
6767 38 (iv) evidence of vapor migration along preferential pathways at a location that is likely to
6868 39result in the discharge of vapors into the structure; or
6969 40 (7) any release for which a notification has been required by the department.
7070 41 (c) Any person required to notify the department pursuant to section 7 shall notify the
7171 42department of such condition upon obtaining knowledge thereof and shall take any appropriate
7272 43and feasible response actions as may be required by the department. Notwithstanding any general
7373 44or special law to the contrary, the department shall not use any other definition of condition of
7474 45substantial release migration.
7575 46 SECTION 2. Said section 2 of said chapter 21E, as so appearing, is hereby further
7676 47amended by inserting, after the definition of “Contain”, the following definition:-
7777 48 “Critical exposure pathways”, those routes by which oil or hazardous material released at
7878 49a disposal site are transported, or are likely to be transported, to human receptors via: (i) vapor-
7979 50phase emissions of oil or hazardous materials into the living or working space of a pre-school,
8080 51daycare, school or occupied residential dwelling at concentrations greater than indoor air
8181 52threshold values for the evaluation of a vapor intrusion pathway as established by the 4 of 5
8282 53department; or (ii) ingestion, dermal absorption or inhalation of measurable concentrations of oil
8383 54or hazardous materials from drinking water supply wells located at and servicing a pre-school,
8484 55daycare, school or occupied residential dwelling.
8585 56 SECTION 3. Section 5C of said chapter 21E, as so appearing, is hereby amended by
8686 57adding the following subsection:-
8787 58 (l) A department audit of response actions at the site or portion of the site owned or
8888 59operated by an eligible person, as delineated in a waste site cleanup activity opinion, for which a
8989 60permanent solution or remedy operations status exists and is maintained or has been achieved
9090 61and maintained in accordance with such opinion, which (i) identifies no violations of this chapter
9191 62and regulations promulgated thereto, or (ii) if such violations are identified, such violations are
9292 63promptly corrected, shall be deemed conclusive evidence that the eligible person has no liability,
9393 64and the department may take no action as to such eligible person, for any releases at any property
9494 65not previously identified as part of the site or any other disposal site. Notwithstanding any
9595 66general or special law to the contrary, the department shall not promulgate regulations relative to
9696 67this subsection.
9797 68 SECTION 4. (a) Notwithstanding any general or special law to the contrary, no person
9898 69shall be liable for any substantial release migration at any property not previously identified as
9999 70part of a disposal site or any other disposal site if the department of environmental protection:
100100 71 (i) has, at any time before the effective date of this act, performed an audit of response
101101 72actions at a site, or a part of a site; and
102102 73 (ii)(1) has determined that a permanent solution or remedy operations status was achieved
103103 74and maintained in accordance with a waste site cleanup activity opinion or any other notification 5 of 5
104104 75to such person; or (2) has notified such person that a violation of chapter 21E of the General
105105 76Laws or any regulation was identified and promptly corrected.
106106 77 (b) The department of environmental protection shall have no defense in any action or
107107 78claim, nor shall the department present evidence to contest liability of an eligible person, upon a
108108 79showing that a permanent solution or remedy operations status was achieved and maintained.