Session Laws

Be it enacted by the People, and by their authority:

SECTION 1. Section 2 of chapter 21E of the General Laws is hereby amended by inserting the following definitions:-

"Chief municipal officer," the city manager in any city having a city manager, the mayor in any other city; the town manager in any town having a town manager, the board of selectmen in any other town.

"Disposal site," any structure, well, pit, pond, lagoon, impoundment, ditch, landfill or other place or area, excluding ambient air or surface water, where uncontrolled oil or hazardous material has come to be located as a result of any spilling, leaking, pouring, abandoning, emitting, emptying, discharging, injecting, escaping, leaching, dumping, discarding or otherwise disposing of such oil or hazardous material. The term shall not include any site containing only oil or hazardous materials which: are lead-based paint residues emanating from a point of original application of such paint; resulted from emissions from the exhaust of an engine; are building materials still serving their original intended use or emanating from such use; or resulted from a release of source, byproduct or special nuclear material from a nuclear incident, as those terms are defined in 42 USC Sec. 2014, if such release was subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under 42 USC Sec. 2210.

"Exposure," any contact, ingestion, inhalation or assimilation of or with oil or hazardous materials, including irradiation.

"Imminent hazard," a hazard which poses a significant or otherwise unacceptable risk of harm to health, safety, public welfare, or the environment if it were present even for a short period of time.

"Priority disposal site," a disposal site which constitutes a substantial hazard to health, safety, public welfare, or the environment.

"Substantial hazard," a hazard which would pose a significant or otherwise unacceptable risk of harm to health, safety, public welfare, or the environment if it continued to be present for several years.

SECTION 2. Chapter 21E of the General Laws is hereby amended by inserting after section 3 the following:-

Section 3A. Timetables and Specifications for Action at Disposal Sites

The following timetable and specifications shall apply to the activities of the department in implementing this chapter.

(a) By May 1, 1987 the department shall submit to the general court alternative plans including a plan recommended by the department, for the future staffing, equipping and funding of its programs under this chapter.

The department shall develop such plans in consultation with the governor.

These plans shall specify future staff, equipment, funding and resource needs, the timing of those needs, and changes in current staffing and equipping procedures necessary to ensure that the program will conform to the requirements of this chapter and this section without undermining the progress of any other programs of the department.

In developing the future funding portions of the plan, the department shall project the amount of funding needed to fulfill the requirements of this chapter over time, and shall consider and evaluate the needs for, and possible mechanisms for, sources of additional funding; including selling bonds, expanding taxes or assessments already established for the purposes of this chapter, and establishing new taxes or assessments.

Beginning in the year 1988, the department and the department of public health shall revise and update on an annual basis the plans required by this subsection, and shall submit such updated plans to the general court by September 30 of each year, along with an assessment of the progress of the programs under this chapter.

(b) By January 15, 1987 the department shall publish a list of all disposal sites confirmed by the department to that date, and a list of locations to be investigated as possible disposal sites. Thereafter, such lists shall be updated and published on at least a quarterly basis. Such lists shall denote the assessment or response action status of each of the sites or locations, provided, however, that the department may hold confidential for up to 180 days all information regarding any location to be investigated as a possible disposal site if the department determines that public disclosure may interfere with enforcement action by the department or the attorney general, except that for a location held confidential the department shall list its city or town and the number of locations in such city or town held confidential, and the department shall provide on a confidential basis to any person who has reported a location to the department as a potential disposal site a statement as to whether such site has been deemed by the department to be a location to be investigated.

Except as otherwise allowed by this section, the department shall include on the list of locations to be investigated as possible disposal sites each location which, based upon the uses of the property, the conditions reported, or other information the department has, is reasonably likely to be a disposal site.

In developing the initial list of locations to be investigated, the department shall consider any existing lists of potential disposal sites previously compiled by the department or the United States Environmental Protection Agency, and all active or inactive public and private landfills known to the department.

Further, in developing and updating the list of locations to be investigated the department may assign a site a priority according to the likelihood of such site being a disposal site, and may hold some of the lower priority locations in reserve, rather than immediately listing them as locations to be investigated, provided, however, that the department shall list, to the extent it has identified or has had reported to it, the following numbers of locations:

(1) by January 15, 1987, at least 400 such locations;

(2) by January 15, 1988, at least 600 additional locations beyond those listed in the previous year;

(3) by January 15, 1989, at least 1000 additional locations beyond those listed in the previous year; and

(4) for each subsequent year, at least 1000 additional locations.

For any locations reported to the department by a Massachusetts resident after May 1, 1987, the department shall decide whether to list such location as a location to be investigated no later than one month after it was reported to the department.

(c) By November 1, 1988, the department shall undertake and complete a comprehensive program to identify potential disposal sites by: using notifications required by this chapter and other laws; encouraging businesses and members of the general public through financial and/or other incentives to provide information anonymously or otherwise on the location of potential disposal sites; identifying locations within the commonwealth which are particularly likely disposal sites, for example, vacant or formerly vacant land adjacent to industries of a type that typically have used or disposed of oil or hazardous materials in the past, surface impoundments, and reclaimed or abandoned mines or quarries; where appropriate, interviewing persons and/or examining the records of persons who have been involved in activities such as production, use, transportation or disposal of oil or hazardous materials; or using any other methods which the department deems appropriate.

(d) The department shall address the confirmed disposal sites listed in its initial list of confirmed sites and all locations which it lists as locations to be investigated in accordance with the following procedures and timetables:

(1) As quickly as possible and at most within one year of the listing of any location to be investigated the department shall complete a preliminary assessment of the location. A preliminary assessment shall include a review of available existing data and an offsite reconnaissance visit to the location to determine whether there is a need to further investigate the location to confirm if it is a disposal site.

(2) For a location for which a preliminary assessment indicates further investigation is warranted, as soon as possible and at most within two years after the listing of such location, the department shall complete a site investigation of the location and shall evaluate whether the location is a disposal site or priority disposal site. A site investigation shall include observations, including testing, necessary to determine whether the location is a disposal site or a priority disposal site. Procedures and criteria for evaluating whether a site is a priority disposal site shall be established by the department in accordance with subsection (m) of this section.

(3) If a location is confirmed to be a priority disposal site, as soon as possible and at most within four years of the listing of the location as a location to be investigated, the department shall ensure that the full extent of environmental contamination due to oil or hazardous materials resulting in or from the priority disposal site is evaluated, the interim remedial response actions are taken consistent with the requirements of subsection (f) of this section, and that a plan is developed for final remedial response at the disposal site consistent with the requirements of subsection (g) of this section. For any confirmed disposal sites listed on the initial list of confirmed disposal sites required by this section which are determined to be priority disposal sites, within three years of the initial listing the department shall ensure that the actions described in this paragraph are achieved.

(4) If a location is confirmed to be a disposal site, but not a priority disposal site, or for confirmed disposal sites listed on the initial list of confirmed sites which are determined not to be priority disposal sites, within seven years of the first listing of such location or site pursuant to this section, the department shall ensure that the full extent of environmental contamination due to oil or hazardous materials resulting in or from the disposal site is evaluated and that a plan is developed for final remedial response at the disposal site consistent with the requirements of subsection (g) of this section.

(e) If significant evidence exists at any time of an imminent hazard to public health, safety, welfare, or the environment from oil or hazardous materials at or from the disposal site, the department shall immediately ensure, using its response powers under section four and its enforcement powers under other sections, that, at a minimum, action is taken to control the potential for health damage, human exposure, safety hazards and environmental harm through appropriate short term measures such as, but not limited to, limiting access to the site, evacuating the area or relocating residents, blocking environmental movement of oil or hazardous materials, providing alternative water supplies, or taking other similar temporary action that will remain effective until other remedial measures of the extent described in subsections (f) or (g) of this section can be implemented.

(f) At each priority disposal site an interim remedial response shall be completed within the deadlines of this section. Such a response shall ensure that, at a minimum, temporary solutions are implemented to the extent feasible for an interim period prior to the implementation of permanent solutions as described in subsection (g). Such solutions shall eliminate any substantial hazard to health, safety, public welfare, or the environment which is presented by the disposal site or any oil or hazardous materials from the site in the environment, and may include, but not be limited to, containment or removal of oil or hazardous materials, relocation, or the provision of alternative water supplies. The department shall ensure that permanent solutions are required under subsection (g) of this section are implemented within the deadlines for an interim remedial response if the department finds that such permanent solutions are feasible and that the immediate implementation of such solutions would be more cost-effective than phased implementation of temporary and permanent solutions.

Any temporary measures implemented in accordance with this section involving construction relative to oil or hazardous materials at a site shall be designed to be effective for a minimum of fifteen years, unless there is established a schedule pursuant to subsection (g) which will ensure the implementation of permanent measures prior to the expiration of fifteen years, in which case, such temporary measures may be designed to be effective for an appropriately shorter period of time.

At each site at which temporary measures are implemented, appropriate systems to monitor the effectiveness of the required measures shall be installed, maintained and used. Where these systems indicate failure of any temporary measures, steps necessary to restore effectiveness shall be taken immediately. At each site when the temporary measures applied initially do not eliminate all substantial hazards to health, safety, public welfare, or the environment, additional temporary measures shall be implemented as they become feasible. Temporary solutions shall be designed to facilitate the permanent solutions required by subsection (g) of this section.

The removal of oil or hazardous materials or contaminated soil or water from a site for land disposal at another location shall not be a satisfactory interim remedial response unless there is no other feasible and acceptable temporary solution.

The order in which priority sites are addressed under this subsection shall be determined in accordance with the Massachusetts Contingency Plan.

(g) The department shall ensure that a final remedial response plan shall be developed for each disposal site within the deadlines of this section. Such final remedial response plan shall establish for a site a timetable of definitive and enterprising steps to be taken by the department and/or other specified persons to identify, develop, and implement a feasible, permanent solution at the site. Where permanent solutions are not yet feasible, the plan shall specify actions to be taken toward making such solutions feasible including, where appropriate, the development of technologies to be applied at the site, and shall ensure that any temporary solutions on the site remain effective until a permanent solution is effectuated.

For the purposes of this section, a "permanent solution" shall mean a measure or combination of measures that, at a minimum, will ensure the attainment of a level of control of each identified substance of concern at disposal site or in the surrounding environment such that no such substance of concern will present a significant or otherwise unacceptable risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time. In determining whether the risks remaining following implementation of such solution will be significant, the department shall consider existing public health or environmental standards where applicable or suitably analogous, and any current or reasonably foreseeable uses of the disposal site and the surrounding environment that may be affected by the oil or hazardous materials at the site or in the surrounding environment.

If appropriate, permanent solutions may be implemented on portions of a site. Where feasible, permanent remedial action shall include measures designed to reduce to the extent possible the level of oil or hazardous materials in the environment to the level that would exist in the absence of the disposal site of concern.

(h) Response actions required pursuant to subsections (f) and (g) of this section shall be deemed to be feasible unless:

(1) no technology exists to achieve the extent of response action mandated by the applicable subsection; or

(2) the costs of conducting, or the risks resulting from, the response action mandated would not be justified by the benefits, considering such factors as potential damage to the environment or health, costs of environmental restoration, long-term operation and maintenance costs, and nonpecuniary values; or

(3) individuals with the expertise needed to effectively implement available solutions would not be available, regardless of the arrangement for securing their services; or

(4) the only available means of achieving applicable response action would necessitate land disposal other than at the site itself and no off-site facility is available in the commonwealth or in other states that is in full compliance with all applicable federal and state regulatory requirements.

(i) By November 1, 1988 the department shall:

(1) establish, in cooperation with federal agencies, universities, other states, private corporations and others, research, development, and demonstration programs to develop and demonstrate the viability of technologies necessary to accomplish the specifications for final remedial responses provided in subsection (g). Such programs shall be designed to help to ensure that permanent cleanup as described in subsection (g) is achievable at all sites by January 1, 1997.

(2) establish, in cooperation with federal agencies, universities, other states, private corporations and others, training programs designed to help to ensure that the department has access to individuals with the expertise necessary to accomplish the requirements of this section. Such programs shall provide for the further training of current department personnel and for training of potential future department personnel.

(j) The commonwealth may provide incentives to encourage voluntary cleanup efforts, and may negotiate with persons potentially liable for response actions under section 5(a) of this chapter to ensure that they undertake needed response actions at disposal sites, provided, however, that the department shall ensure that all of the action deadlines specified in this section are met. Toward that end, the department shall establish and implement intermediate deadlines for each disposal site, including but not limited to, deadlines for compliance with orders and termination of settlement discussions which will ensure action by the department or other persons consistent with the deadlines of this section. To the extent that action by any person is not being undertaken at a time, rate or manner that will meet the specifications and deadlines of this section, the department shall utilize its authority under section four of this chapter to ensure response action within the specifications and deadlines of this section, and earlier if possible.

(k) The department shall make every effort to provide the documentation required under CERCLA in order to make sites eligible for federal response action monies. In entering or revising cooperative agreements and contracts with the federal government under CERCLA, the department shall, to the greatest extent possible, seek to include in each agreement or contract sufficient flexibility and authority to allow response actions to be undertaken utilizing federal monies within the deadlines and specifications of this section.

(l) In the event that conditions beyond the control of the department and peculiar to a particular disposal site substantially impede compliance with a deadline for interim remedial response action at such disposal site, or if the department reasonably anticipates that federal monies will be available for such response actions but such monies are not available soon enough to meet the timelines or specifications of this section, the department may extend for up to one year any deadline of this section for completing an interim remedial response action at the site.

(m) By January 1, 1988, the department shall revise or complete the Massachusetts contingency plan mandated by subsection (b) of section 3 of this chapter to conform to the requirements of this section. Such plan shall include simple, standardized methods and criteria for evaluating the degree of hazard present at a disposal site including whether the disposal site is an imminent or substantial hazard and whether it is a priority disposal site, and the feasibility and effectiveness of response actions mandated by subsections (f) and (g). Such methods and criteria may comport with and complement the methods and criteria of the National Contingency Plan prepared under the authority of 33 U.S.C. Sec. 1321 (c) and 42 U.S.C. Sec. 9605, and shall be biased to be protective of health, safety, public welfare and environment.

(n) Nothing in this section shall be construed to limit the authority of the department under this chapter or any other provision of the General Laws to take actions to protect public health, safety, welfare or the environment.

SECTION 3. Said Chapter 21E is hereby amended by inserting after section 13 the following:

Section 14. Public Notice and Participation.

(a) Within thirty days after the completion of each site investigation required by section 3A of this chapter, the department shall publish in newspapers, which circulate to communities potentially affected by oil or hazardous materials from the location investigated, a notice summarizing the results of the investigation, stating whether there is a disposal site at the location, stating whether it has been deemed to be a priority disposal site, and summarizing the rights of local residents pursuant to this chapter. The department shall concurrently with such notice submit to said newspapers a press release with the same type of information.

(b) Upon written petition of ten or more residents of a municipality in which a disposal site is located, or of a municipality potentially affected by a disposal site, the department shall hold a public meeting at a time and location convenient to the affected public, and at such meeting shall present a proposed plan for involving the public in decisions regarding response actions at the site. The department shall inform residents of potentially affected communities of the meeting in the manner described in subsection (a). The department shall design the proposed plan to ensure: that interested members of the public will have sufficient notice, access to documents, and opportunity to comment to enable them to affect decisions regarding response actions at the disposal site; that all public meetings or hearings will be held at locations and times convenient to the affected public; and that public documents regarding the site will be available at locations and times convenient to the affected public. Following the meeting on the proposed plan, the department shall revise the plan to reflect comments it receives and make it available to the public. Nothing in this section shall preclude the development of a public participation plan or the conducting of public meetings or hearings by the department in the absence of a petition.

(c) Subject to appropriation, the department may provide for limited grants to be given to any group of individuals who may be affected by oil or hazardous materials from any disposal site. Any recipient group shall use such grant to obtain advice and technical assistance on matters relating to handling of disposal sites pursuant to this chapter. The department shall promulgate by November 6, 1987 regulations specifying terms and conditions of eligibility for and use of such grant.

(d) The chief municipal officer of a city or town in which a disposal site is located may appoint from members of the potentially affected public an individual, or individuals, to inspect the site on behalf of the community. Such individual or individuals shall be given reasonable opportunities by the department and the site owner or operator to inspect such site prior to, during, and after the implementation of major response actions, and may bring with them on such inspections experts on oil or hazardous materials releases or responses.

Section 15. Citizen Enforcement.

In any suit by Massachusetts residents to enforce the requirements of this chapter, or to abate a hazard related to oil or hazardous materials in the environment, the court may award costs, including reasonable attorney and expert witness fees, to any party other than the commonwealth who advances the purposes of this chapter.

SECTION 4. The provisions of this act are severable, and if any of its provisions or an application thereof shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions or other applications thereof.