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