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2 | 2 | | SENATE DOCKET, NO. 420 FILED ON: 1/14/2023 |
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3 | 3 | | SENATE . . . . . . . . . . . . . . No. 583 |
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4 | 4 | | The Commonwealth of Massachusetts |
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5 | 5 | | _________________ |
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6 | 6 | | PRESENTED BY: |
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7 | 7 | | Bruce E. Tarr |
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8 | 8 | | _________________ |
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9 | 9 | | To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General |
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10 | 10 | | Court assembled: |
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11 | 11 | | The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: |
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12 | 12 | | An Act relative to liability for release of hazardous materials. |
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13 | 13 | | _______________ |
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14 | 14 | | PETITION OF: |
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15 | 15 | | NAME:DISTRICT/ADDRESS :Bruce E. TarrFirst Essex and Middlesex 1 of 5 |
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16 | 16 | | SENATE DOCKET, NO. 420 FILED ON: 1/14/2023 |
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17 | 17 | | SENATE . . . . . . . . . . . . . . No. 583 |
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18 | 18 | | By Mr. Tarr, a petition (accompanied by bill, Senate, No. 583) of Bruce E. Tarr for legislation |
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19 | 19 | | relative to liability for release of hazardous materials. Environment and Natural Resources. |
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20 | 20 | | [SIMILAR MATTER FILED IN PREVIOUS SESSION |
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21 | 21 | | SEE HOUSE, NO. 4898 OF 2021-2022.] |
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22 | 22 | | The Commonwealth of Massachusetts |
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23 | 23 | | _______________ |
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24 | 24 | | In the One Hundred and Ninety-Third General Court |
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25 | 25 | | (2023-2024) |
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26 | 26 | | _______________ |
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27 | 27 | | An Act relative to liability for release of hazardous materials. |
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28 | 28 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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29 | 29 | | of the same, as follows: |
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30 | 30 | | 1 SECTION 1. Section 2 of chapter 21E of the General Laws, as appearing in the 2020 |
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31 | 31 | | 2Official Edition, is hereby amended by striking out the definition of “Condition of substantial |
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32 | 32 | | 3release migration” and inserting in place thereof the following definition:- |
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33 | 33 | | 4 “Condition of substantial release migration”, (a) a release of oil or hazardous material |
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34 | 34 | | 5that is likely to be transported through environmental media where the mechanism, rate or extent |
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35 | 35 | | 6of transport has resulted in or, if not promptly addressed, has the potential to result in: (1) health |
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36 | 36 | | 7damage, safety hazards or environmental harm; or (2) a substantial increase in the extent or |
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37 | 37 | | 8magnitude of the release, the degree or complexity of future response actions, or the amount of |
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38 | 38 | | 9response costs. |
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39 | 39 | | 10 (b) Conditions of substantial release migration shall include, but not be limited to: 2 of 5 |
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40 | 40 | | 11 (1) releases that have resulted in the discharge of separate-phase oil or separate-phase |
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41 | 41 | | 12hazardous material to surface waters, buildings or underground utilities or conduits; |
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42 | 42 | | 13 (2) releases to the ground surface or to the vadose zone that, if not promptly removed or |
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43 | 43 | | 14contained, are likely to significantly impact the underlying groundwater or significantly |
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44 | 44 | | 15exacerbate an existing condition of groundwater pollution; |
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45 | 45 | | 16 (3) releases to the groundwater that have migrated or are expected to migrate more than |
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46 | 46 | | 17200 feet per year; |
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47 | 47 | | 18 (4) releases to the groundwater that have been or are within 1 year likely to be detected in |
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48 | 48 | | 19a public or private water supply well; |
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49 | 49 | | 20 (5) releases to the groundwater that have been or are within 1 year likely to be detected in |
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50 | 50 | | 21a surface water body, wetland or public water supply reservoir; |
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51 | 51 | | 22 (6) releases to the groundwater or to the vadose zone that have resulted in or have the |
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52 | 52 | | 23potential to result in the discharge of vapors into a school, daycare or child care center or |
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53 | 53 | | 24occupied residential dwelling at concentrations greater than indoor air threshold values for the |
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54 | 54 | | 25evaluation of a vapor intrusion pathway as established by the department; provided, that |
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55 | 55 | | 26conditions that indicate a potential discharge of vapors into a school, daycare or child care center |
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56 | 56 | | 27or occupied residential dwelling shall include, but shall not be limited to: |
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57 | 57 | | 28 (i) soil or soil gas impacted with 1 or more volatile organic compounds within 6 feet, |
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58 | 58 | | 29measured horizontally from the wall of the structure, and within 10 feet measured vertically from |
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59 | 59 | | 30the basement floor or foundation at concentrations that are likely to discharge vapors into the |
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60 | 60 | | 31structure; 3 of 5 |
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61 | 61 | | 32 (ii) 1 or more volatile organic compound in the groundwater exceed the applicable |
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62 | 62 | | 33Groundwater Category GW-2 Standard within 30 feet of the structure, and the average annual |
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63 | 63 | | 34depth to groundwater in that area is 15 feet or less; |
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64 | 64 | | 35 (iii) volatile light non-aqueous phase liquid is present in a groundwater monitoring well, |
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65 | 65 | | 36excavation, or subsurface depression within 30 feet of the structure at a measured thickness equal |
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66 | 66 | | 37to or greater than 1/8 inch or .01 feet; or |
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67 | 67 | | 38 (iv) evidence of vapor migration along preferential pathways at a location that is likely to |
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68 | 68 | | 39result in the discharge of vapors into the structure; or |
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69 | 69 | | 40 (7) any release for which a notification has been required by the department. |
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70 | 70 | | 41 (c) Any person required to notify the department pursuant to section 7 shall notify the |
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71 | 71 | | 42department of such condition upon obtaining knowledge thereof and shall take any appropriate |
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72 | 72 | | 43and feasible response actions as may be required by the department. Notwithstanding any general |
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73 | 73 | | 44or special law to the contrary, the department shall not use any other definition of condition of |
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74 | 74 | | 45substantial release migration. |
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75 | 75 | | 46 SECTION 2. Said section 2 of said chapter 21E, as so appearing, is hereby further |
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76 | 76 | | 47amended by inserting, after the definition of “Contain”, the following definition:- |
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77 | 77 | | 48 “Critical exposure pathways”, those routes by which oil or hazardous material released at |
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78 | 78 | | 49a disposal site are transported, or are likely to be transported, to human receptors via: (i) vapor- |
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79 | 79 | | 50phase emissions of oil or hazardous materials into the living or working space of a pre-school, |
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80 | 80 | | 51daycare, school or occupied residential dwelling at concentrations greater than indoor air |
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81 | 81 | | 52threshold values for the evaluation of a vapor intrusion pathway as established by the 4 of 5 |
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82 | 82 | | 53department; or (ii) ingestion, dermal absorption or inhalation of measurable concentrations of oil |
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83 | 83 | | 54or hazardous materials from drinking water supply wells located at and servicing a pre-school, |
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84 | 84 | | 55daycare, school or occupied residential dwelling. |
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85 | 85 | | 56 SECTION 3. Section 5C of said chapter 21E, as so appearing, is hereby amended by |
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86 | 86 | | 57adding the following subsection:- |
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87 | 87 | | 58 (l) A department audit of response actions at the site or portion of the site owned or |
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88 | 88 | | 59operated by an eligible person, as delineated in a waste site cleanup activity opinion, for which a |
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89 | 89 | | 60permanent solution or remedy operations status exists and is maintained or has been achieved |
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90 | 90 | | 61and maintained in accordance with such opinion, which (i) identifies no violations of this chapter |
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91 | 91 | | 62and regulations promulgated thereto, or (ii) if such violations are identified, such violations are |
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92 | 92 | | 63promptly corrected, shall be deemed conclusive evidence that the eligible person has no liability, |
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93 | 93 | | 64and the department may take no action as to such eligible person, for any releases at any property |
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94 | 94 | | 65not previously identified as part of the site or any other disposal site. Notwithstanding any |
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95 | 95 | | 66general or special law to the contrary, the department shall not promulgate regulations relative to |
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96 | 96 | | 67this subsection. |
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97 | 97 | | 68 SECTION 4. (a) Notwithstanding any general or special law to the contrary, no person |
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98 | 98 | | 69shall be liable for any substantial release migration at any property not previously identified as |
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99 | 99 | | 70part of a disposal site or any other disposal site if the department of environmental protection: |
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100 | 100 | | 71 (i) has, at any time before the effective date of this act, performed an audit of response |
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101 | 101 | | 72actions at a site, or a part of a site; and |
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102 | 102 | | 73 (ii)(1) has determined that a permanent solution or remedy operations status was achieved |
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103 | 103 | | 74and maintained in accordance with a waste site cleanup activity opinion or any other notification 5 of 5 |
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104 | 104 | | 75to such person; or (2) has notified such person that a violation of chapter 21E of the General |
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105 | 105 | | 76Laws or any regulation was identified and promptly corrected. |
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106 | 106 | | 77 (b) The department of environmental protection shall have no defense in any action or |
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107 | 107 | | 78claim, nor shall the department present evidence to contest liability of an eligible person, upon a |
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108 | 108 | | 79showing that a permanent solution or remedy operations status was achieved and maintained. |
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