Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The definition of "Covered claim" in section 15 of chapter 21C of the General Laws, as appearing in the 1986 Official Edition, is hereby amended by striking out, in line 35, the word "eighty-eight" and inserting in place thereof the word:- ninety.

SECTION 2. Section 19 of said chapter 21C, as so appearing, is hereby amended by striking out, in line 19, the word "eighty-eight" and inserting in place thereof the word:- ninety.

SECTION 2A. Section 2 of chapter 21E of the General Laws, as appearing in the 1986 Official Edition, is hereby amended by inserting after the definition of "Respond", the following two definitions:-

"Response action contract", any contract relating to the provision of services to assess, contain or remove oil or hazardous material which is entered into on or after the effective date of this definition between the commonwealth or any agency thereof, and a response action contractor.

"Response action contractor" or "contractor", an individual, partnership, corporation, association, joint venture or other commercial entity which enters into a response action contract with the commonwealth or any agency thereof and includes any such entity acting as a subcontractor to the primary response action contractor where such entity is performing services relating to the response action contract.

SECTION 2B. Said chapter 21E, as so appearing, is hereby further amended by adding the following three sections:-

Section 16. (a) A response action contractor with respect to any release or threatened release of oil or hazardous material shall not be strictly liable under this chapter nor under any other state law to any person for injuries, costs, damages, expenses or other liability including but not limited to claims for indemnification or contribution and claims by third parties for death, personal injury, illness or loss of or damage to real or personal property or economic loss which results from such release or threatened release.

(b) The limitation of liability provided under subsection (a) shall apply only to response action contractor liability arising out of a release or threatened release of oil or hazardous material resulting from response actions conducted by the response action contractor.

(c) Any response action contractor who is otherwise liable under subsection (a) of section five for a release or threatened release of oil or hazardous material at a site shall not be entitled to any limitation of liability under this section by virtue of becoming a response action contractor at that site.

Section 17. (a) The commonwealth may enter into an indemnification agreement to indemnify and hold harmless any response action contractor who meets the requirements of this section against any liability for negligence, including legal fees and costs, if any, in an amount not to exceed a figure established by the indemnification agreement pursuant to the terms of this section. In no event shall the amount of indemnification to be provided under an indemnification agreement exceed two million dollars for a single occurrance involving the release or threatened release of oil or hazardous material. No indemnification shall be provided pursuant to an indemnification agreement under this section if the response action contractor acted in a grossly negligent, willful or malicious manner or if the act or omission which gives rise to a claim was not within the scope of the response action contract.

(b) The indemnification provided by subsection (a) shall not be available to any potentially responsible party with respect to any costs or damages caused by any act or omission of a response action contractor. Nothing in this section shall affect the liability under this chapter or under any state or federal law of any potentially responsible party.

(c) Indemnification under this section shall apply only to response action contractor liability arising out of a release or threatened release of oil or hazardous material resulting from response actions conducted by the response action contractor pursuant to its response action contract.

(d) Indemnification may be provided under this section only if the response action contractor and the commonwealth or an agency thereof enter into an indemnification agreement. An indemnification agreement may be entered into by the commonwealth or any of its agencies only if the following requirements are met:

(1) The liability covered by the indemnification agreement exceeds or is not covered by insurance available to the response action contractor at a fair and reasonable price when entering into the response action contract, and adequate insurance to cover such liability is not generally available at the time the response action contract is entered into.

(2) The response action contractor has made diligent efforts to obtain insurance coverage for such liability from sources other than the commonwealth including diligent efforts to self-insure.

(3) In the case of a response action contract covering more than one site, the response action contractor agrees to make such diligent efforts to obtain insurance coverage each time the contractor begins work under the contract at a new site.

(e) Any indemnification agreement entered into under subsection (d) shall include specific terms and conditions under which the commonwealth will indemnify the contractor, such as the establishment of premiums, deductibles and limitations on available indemnification, and the provision of notice to the commonwealth in the event that a claim is asserted against the response action contractor.

(f) The commissioner of insurance shall provide information necessary to make the determination specified in clause (1) of subsection (d) through the publishing of an annual report on the availability of insurance for response action contractors generally, and by providing guidance to agencies of the commonwealth on an ongoing basis. The first of such reports shall be published within thirty days of the effective date of this section.

(g) Amounts expended pursuant to this section for indemnification of any person who is a response action contractor with respect to any release or threatened release, shall be considered a cost of response incurred by the commonwealth with respect to such release, and the commonwealth may seek recovery of such costs from other parties liable under section five.

Section 18. Any agency of the commonwealth is authorized to promulgate regulations as it deems necessary for the implementation and administration of sections sixteen and seventeen subject to the approval of the executive office of administration and finance. Failure to promulgate such regulations shall not affect any agency's right to enter into indemnification agreements under said sections sixteen and seventeen nor the validity or enforceability of said sections or agreements.

Nothing in sections sixteen or seventeen shall affect the liability of any person under any warranty, nor the liability of an employer who is a response action contractor to any employee of such employer under any provision of law, including any provision relating to workers' compensation.

SECTION 3. Section 4 of chapter 10 of the acts of 1986 is hereby amended by striking out the word "eighty-eight", inserted by section 3 of chapter 628 of the acts of 1986, and inserting in place thereof the word:- ninety.

SECTION 4. The second paragraph of section 4A of said chapter 10 is hereby amended by striking out the word "eighty-eight", inserted by section 4 of said chapter 628, and inserting in place thereof the word:- ninety.

SECTION 5. Section 6 of said chapter 10 is hereby amended by striking out the word "eighty-eight", inserted by section 5 of said chapter 628, and inserting in place thereof the word:- ninety