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 General Laws are hereby amended by inserting after chapter 21I the following chapter:- `tuc CHAPTER 21J. UNDERGROUND STORAGE TANK PETROLEUM PRODUCT CLEANUP FUND.

Section 1. As used in this section, the following words shall have the following meanings:-

"Board", the underground storage tank petroleum product cleanup fund administrative review board.

"Bulk facility", a facility including pipeline terminals, refinery terminals, rails and barge terminals, and associated underground and above ground storage tanks, connected or separate, from which petroleum products are withdrawn from bulk and delivered into a cargo tank or a barge used to transport these products, including all licensed distributors of petroleum products.

"Dispensing facility", any facility, qualified to do business in the commonwealth under the provisions of chapter sixty-four A, sixty-four E, and sixty-four F, at which underground storage tanks are used to store gasoline or other fractions of petroleum products and from which gasoline or other fractions or petroleum products are dispensed directly to a motor vehicle as motor fuel; provided, that a facility at which gasoline, or any fractions of petroleum products are stored in an underground storage tank that is a farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes or is owned by the commonwealth or any of its political subdivisions shall not constitute a dispensing facility.

"Department", the department of public safety.

"Fund", the underground storage tank petroleum product cleanup fund, established pursuant to section two S of chapter twenty-nine.

"Owner or Operator", any person in control of, or having the responsibility for, the daily operation of a bulk facility or a site at which an underground storage tank or an underground storage tank system is located. Also, the person who first invoices petroleum products withdrawn from the bulk facility. For the purposes of this section an exchange statement is not considered an invoice.

"Petroleum product", a product that is obtained from distilling and processing crude oil and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing or fuel oil used for heating purposes.

"Reimbursement", shall mean reimbursement to a claimant or payment to a third party on behalf of a claimant.

"Release", any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposal into the environmental, excluding emissions from the exhaust of an engine.

"Underground storage tank", any one or combination of tanks, including underground pipes connected thereto, used to contain an accumulation of petroleum product and the volume of which, including the volume of underground pipes and connected thereto, is ten percent or more beneath the surface of the ground.

"Underground storage tank system", an underground storage tank and its associated ancillary equipment and containment system.

"Unobligated balance", the amount determined by subtracting from the cash balance of the fund at the end of each month the sum of the total balances remaining on all contracts entered into by a person described in clauses (1) or (5) of paragraph (a) of section five of chapter twenty-one E in order to undertake a response action as defined by section one of said chapter twenty-one E as ordered by the department of environmental protection as a result of a release of a petroleum product from an underground storage tank or underground storage tank system, and by further subtracting from the cash balance of the fund at the end of each month the sum of the total monies allocated to cover the expenses of the board, the department, and the department of environmental protection, pursuant to clauses (b), (c), and (d) of section four and the total amount of applications for reimbursement for any third party claims of any nature pursuant to sub-clause (2) of clause (a) of section four.

Section 2. (A) A fee is hereby imposed on the use of a dispensing facility at the site of delivery of petroleum product. Each owner or operator of a bulk facility on delivery of petroleum product to a dispensing facility shall collect from the person who orders or requests the delivery a fee in an amount of fifty dollars for each delivery. The person delivering the petroleum product shall be responsible to the department for the collection of such fee and in the event it is unable to recover such fee from the person who ordered such petroleum product, such person delivering petroleum product shall nonetheless remit to the department the fee associated with such delivery. In the event of split-load or partial deliveries to dispensing facilities from the same tanker truck, this fee may be prorated among the dispensing facilities receiving such deliveries.

A fee is hereby imposed on the use or maintenance of an underground storage tank used to store petroleum product or any fraction thereof, except waste oil, at a dispensing facility. Each owner of an underground storage tank used to store petroleum products or any fraction thereof, except waste oil, at a dispensing facility shall annually pay to the department, as the holder of the list of registered underground storage tanks storing petroleum and other materials, a fee of two hundred dollars per tank. For the purposes hereof, each tank in an underground storage tank system shall be considered a separate underground storage tank. The department by regulation shall establish procedures for the collection of such delivery fee and such annual fee based on bills prepared and mailed by the department simultaneously to all owners and operators obligated to pay such fee.

(B) The board shall semi-annually review the adequacy of the aforementioned fees and shall by regulation adjust said fees to meet the financial needs of the fund. Within five days of approving any adjustment to a fee the board shall file said adjustment with the clerk of the house of representatives and the senate while the general court is in session, and said adjustment shall take effect within thirty days of such filing unless the general court has passed a resolve disapproving such a fee adjustment. Any such adjustments to be made for a reporting period shall be published in the Massachusetts register.

(C) In accordance with regulations to be promulgated hereunder, the fees shall be collected, reported and paid to the department as a separate line item entry, from time to time, by owners and operators charged with the collection, reporting and payment of gasoline and special fuels taxes pursuant to the provisions of chapter sixty-four A, sixty-four E, and sixty-four F, and such persons may be subject to audit by the department. The department shall deposit all receipts into the distinct interest bearing account established pursuant to the provisions of section two S of chapter twenty-nine. The department shall submit a monthly report to the board listing revenues generated by the delivery fees and the annual storage tank fees for the previous month and outlays from the fund, including reimbursements, agency appropriations and third party claims issued during the previous month.

(D) The fee imposed under this section may not be collected or required to be paid on or after the first day of the second month following the date on which the unobligated balance in the fund equals or exceeds thirty million dollars. The treasurer shall notify the department in writing of the date on which the unobligated balance equals or exceeds thirty million dollars.

If the unobligated balance in the fund falls below ten million dollars, the fee shall be reinstated effective on the first day of the second month following the publication of notice of reinstatement. The treasurer shall notify the department in writing of the date on which the unobligated balance in the fund falls below ten million dollars. Once reinstated, the fee shall be charged until the unobligated balance in the fund equals or exceeds thirty million dollars.

(E) The fees established in this section shall not apply to a delivery of a petroleum product to distributors of petroleum products destined for export from this state that is delivered by a bulk facility owner or operator to a common or contract carrier or an oceangoing vessel including a ship, barge, or tanker, if the petroleum product is in continuous movement to a destination outside this state, or sales or deliveries to the United States Government, or sales or deliveries to the commonwealth or any of its political subdivisions.

Section 3. No owner or operator who has a responsibility pursuant to any law with respect to environmental cleanup actions, awarding third party damages or preventing the need for environmental cleanup actions shall avoid or delay such responsibility, or be excused from such responsibility, because of reliance on funds provided in this chapter or because of any failure or delay of reimbursement provided in this chapter. No failure or delay of reimbursement provided for in this chapter shall give any person any cause of action or any defense to any cause of action, except as provided in section eleven.

Section 4. The purpose of the fund shall be to prevent the need for environmental cleanup actions and to expedite environmental cleanup actions by providing partial reimbursements to owners or operators of underground storage tanks or underground storage tank systems or who are described in clauses (1) or (5) of paragraph (a) of section five of chapter twenty-one E for the costs, expenses, and other obligations incurred by said parties as a result of releases of petroleum products from underground storage tanks or underground storage tank systems; and to pay administrative expenses, personnel expenses, and miscellaneous costs as specified in regulation by the department, working in conjunction with the department of environmental protection; provided that the Commonwealth, the Board and the fund established by Section 8 of this chapter shall not incur any liability whatsoever for remediation of hazardous materials or waste or for a third party claims other than to the extent of monies in such fund and to extent of reimbursement and administrative expenses expressly established under this chapter. Monies from the fund subject to appropriation, shall be dispensed only upon the written order of the secretary of administration and finance or his designee for the following purposes and no others:

(a) Reimbursement for the following, provided that the amount of reimbursements actually allotted during any fiscal year shall not exceed the cash balance of the fund as of December thirty-first of the calendar year preceding the beginning of the fiscal year in question less the total of the amounts specified in subsections (b), (c), and (d) of this section:

(1) Reimbursement of costs, expenses, and other obligations incurred by an owner or operator described in clauses (1) or (5) of paragraph (a) of section five of chapter twenty-one E as a result of taking a response action, as that term is defined in chapter twenty-one E, in response to, or otherwise incurring expenses as a result of, a release, as that term is defined in chapter twenty-one E, of petroleum product from an underground storage tank or underground storage tank system.

(2) Reimbursement for any claims for bodily injury, property damage, and damage to natural resources which are assessed against an owner or operator described in clauses (1) or (5) of paragraph (a) of section five of chapter twenty-one E as a result of a release, as that term is defined in chapter twenty-one E, of petroleum product from an underground storage tank or underground storage tank system.

(b) Administrative expenses, personnel expenses, and miscellaneous expenses incurred by the following agencies in the course implementing this chapter, provided, however, that the amount dispensed for each agency for each year shall not exceed the limits provided for herein.

(1) Subject to appropriation, effective for fiscal years beginning on and after July 1, 1992, the limits shall be either the minimum amounts specified below or those greater amounts as set in the manner described below:

(A) The minimum amounts shall be as follows:

(i) For the board, three hundred thousand dollars.

(ii) For the department, seven hundred fifty thousand dollars.

(iii) For the department of environmental protection, six hundred thousand dollars.

(2) Effective through June 30, 1992, subject to appropriation, the following agencies shall receive for each month the percentage specified below of the total amount of fees, penalties, and interest collected pursuant to this chapter during that month:

(i) For the board, one percent.

(ii) For the department, three percent.

(iii) For the department of environmental protection, two percent.

(3) Subject to appropriation, the board may, by a two-thirds vote of those members present and voting, increase any of the amounts specified in clauses (1) or (2), but only to the extent such increase is necessary to allow the board or the departments in question to do the following:

(i) Set standards for the proper construction, maintenance, and testing of underground storage tanks and underground storage tank systems.

(ii) Collect all the fees, penalties, and interest prescribed pursuant to this chapter, account for all the monies thus collected, and take appropriate action against those who do not pay all that they owe or do not comply with all requirements applicable to them for the payment of such monies.

(iii) Adopt and amend from time to time the rules and regulations specified in section eight.

(iv) Implement and enforce the rules and regulations specified in section eight.

(v) Initiate, defend, and otherwise be parties to judicial proceedings pursuant to this chapter.

(vi) Take all other action appropriate to effectuate this chapter.

(c) Grants provided pursuant to section thirty-seven A of chapter one hundred forty-eight, provided that, subject to appropriation, not more than the following amounts shall be dispensed from the fund for such grants:

(1) Effective for fiscal years beginning on and after July 1, 1992, not more than two million dollars per year.

(2) Effective through June 30, 1992, not more than seven percent of the total amount of fees, penalties, and interest collected pursuant to this chapter.

(d) Grants to the department of environmental protection to reimburse said department for the costs it incurs in the course of responding, as that term is defined in chapter twenty-one E, to releases, as that term is defined in chapter twenty-one E, of petroleum product from an underground storage tank or underground storage tank system for which previous payments under Section two have been made, provided that, subject to appropriation, the amount of such grants shall not exceed the amount of such costs.

Section 5. Reimbursements described in subsection (a) of section four shall be subject to the cap specified in subsection (a) of this section and the deductibles specified in subsection (b) of this section:

(a) For each tank eligible for reimbursement pursuant to this chapter, reimbursement for all costs, expenses, claims, and other obligations eligible for reimbursement pursuant to this chapter shall not exceed, in the aggregate, one million dollars for reimbursements under section 4(a)(1) and one million dollars for expenses under Section 4(a)(2) less the applicable deductible specified in subsection (b) of this section.

(b) For each tank eligible for reimbursement pursuant to this chapter, reimbursement for all costs, expenses, claims, and other obligations otherwise eligible for reimbursement pursuant to this chapter shall be subject to a deductible that shall be calculated as follows:

(1) If the tank owner or operator owns one or more underground storage tank and underground storage tank systems at three or more sites, the deductible shall be the first ten thousand dollars of all costs, expenses, claims, and other obligations otherwise eligible for reimbursement pursuant to this chapter.

(2) If the tank owner or operator owns one or more tanks at two sites, the deductible shall be the first seven thousand five hundred dollars of all costs, expenses, claims, and other obligations otherwise eligible for reimbursement pursuant to this chapter.

(3) If the tank owner or operator owns one or more tanks at only one site, the deductible shall be the first five thousand dollars of all costs, expenses, claims, and other obligations otherwise eligible for reimbursement pursuant to this chapter.

Section 6. No owner or operator shall receive reimbursement pursuant to this chapter unless a claim for such reimbursement has been submitted in writing to, and approved in writing by, the board. The secretary of administration and finance shall make payments from the fund for any claim approved by a majority vote of the board and submitted in writing to said secretary.

Section 7. The cargo manifests or invoices or copies of the cargo manifests or invoices and any other records required under this chapter or regulations of the department shall be maintained for a period of four years after the date on which the document or other record is prepared and be open for inspection by said department at all reasonable times.

Section 8. There is hereby established the Underground Storage Tank Petroleum Cleanup Fund Administrative Review Board. The board shall adopt rules and regulations for the administration, collection, reporting, and payment of the fees payable or collected pursuant to this chapter, and for reviewing, processing, and acting on claims for reimbursement. No claim for reimbursement shall be submitted to or received or acted on by the board until after all the regulations required pursuant to this section have been promulgated and have taken effect. The board shall be comprised of the following members: the secretary of administration and finance, or his designee, who shall serve as the chairman; the commissioner of the department of environmental protection, or his designee; the state fire marshal, or his designee: and six members to be appointed by the governor who are knowledgeable in the remediation and prevention of problems resulting from the operation of underground storage tanks and tank systems, one of whom shall be a representative of the Massachusetts Petroleum Council; one of whom shall be a representative of the Independent Oilmen's Association of New England; one of whom shall be a representative of the Bay State Gasoline Retailers Association; one of whom shall be a representative of an insurance institution or organization; one of whom shall be a representative of a financial institution or organization; and one of whom shall be a representative from a statewide environmental public interest organization. Each member of the board appointed by the governor shall serve a term of three years and no such member shall be eligible to serve for more than two terms. Any person appointed to a vacant seat on the board shall be eligible to be reappointed for two full terms. Seven members shall constitute a quorum, and a quorum must be present to approve any reimbursement pursuant to this chapter. The board shall meet at least quarterly in each calendar year. No appointed member shall have a financial interest in any of the decisions, actions, or reports of the board.

Such rules and regulations shall include, but shall not be limited to, the following:

(1) a means of notifying all eligible parties of the existence and functioning of the Fund;

(2) the record-keeping required of eligible parties for submission to and reimbursement from the fund;

(3) a means of making periodic and partial reimbursement to eligible parties to enable such parties to meet their interim costs, expenses and obligations;

(4) a method of providing reimbursement for costs, expenses and obligations incurred by an eligible party after the effective date of this chapter regardless of the date of discovery activities with respect thereto; provided, however, that no reimbursement shall be paid for costs, expenses and obligations incurred by an eligible party prior to the effective date of this chapter;

(5) a requirement that the board render its decision to an eligible party, with respect to each claim for reimbursement within forty-five days following its receipt of such claim and, if appropriate, forward a request for immediate payment to the secretary of administration and finance on behalf of such eligible party;

(6) a process for reviewing and adjusting the fees established in section two so as to meet the financial requirements of the fund;

(7) prohibitions against the filing and approval of claims for reimbursement that are fraudulent, inflated, or unreasonably high and requirements and procedures for detecting such claims and responding to them appropriately; and

(8) the development of standards and requirements to be met by underground storage tank owners and operators who either possess or do not possess liability insurance, for being eligible to receive a reimbursement from the fund.

The Board shall be authorized to promulgate any and all regulations necessary for the effective operation of this chapter consistent with its purposes and such regulations may, but need not, include procedures for reimbursements hereunder to be less than total and may require claimants to recover no more than 85% of the claim.

Section 9. In order to be eligible for reimbursement from the fund an owner or operator described in section four must comply with the following:-

(a) An owner or operator must have completed, as the case may be, all underground storage tank or underground storage tank system registration requirements as set forth in section 9002 of the Resource Conservation and Recovery Act of nineteen hundred and seventy-six as well as with all federal or state regulatory requirements relating to the registration of underground storage tanks or underground storage tank system;

(b) be in full compliance with all regulatory requirements imposed upon an owner or operator, as the case may be, of an underground storage tank or underground storage tank system, which requirements relate to the maintenance and operation of the underground storage tanks or underground storage tank system and with all regulatory requirements related to the construction and installation of such underground storage tank or underground storage tank system, provided such requirements applied to such owner or operator at the time such underground storage tank or underground storage tank system was constructed or installed;

(c) have incurred a cost, expense, or obligation, whether for cleanup or related matters or for claims of third parties resulting from a release of a petroleum product from an underground storage tank or underground storage tank system; and

(d) in the case of claims for bodily injury, property damage, or damage to natural resources, the owner or operator submitting the claim shall have obtained a final judgement from a court of competent jurisdiction, all rights of appeal being exhausted, waived, or expired, that the bodily injury, property damage, or damage to natural resources was a result of a release of a petroleum product from the underground storage tank or underground storage tank system;

Section 10. If an owner or operator received a reimbursement pursuant to this chapter for a cost, expense, or obligation incurred in remediating a release or a threat of a release of a petroleum product caused by the negligent action of some other person, the secretary of administration and finance, acting on behalf of the fund, shall be authorized and directed to obtain from that other person recoupment to the fund of the reimbursement paid from the fund.

Section 11. Claims submitted to the board pursuant to this chapter, and procedures for acting on such claims, shall not be adjudicatory proceedings and shall not be subject to those provisions of chapter thirty A, or any other law, governing adjudicatory proceedings. Any owner or operator aggrieved by the denial of a claim or any other action of the board on a claim may bring a civil action in the nature of certiorari pursuant to section four of chapter two hundred forty-nine; provided, however, that the action shall be commenced within thirty days of the date of the determination or other action of the board. No action may be brought pursuant to this section or any other law where the denial of a claim or any other action on a claim was based solely on insufficient available funds.

Section 12. Any owner or operator who possesses a fee collected or payable under this chapter and who fails to remit the fee to the department at the time and in the manner required by this chapter and the rules and regulations of the department shall be required to pay the applicable fee and a penalty of five percent on the amount of the fee due and payable. If any owner or operator fails to file the report or pay the fee before the thirtieth day after the date on which the fee or report is due, the owner or operator shall pay an additional penalty of five percent on the amount of the fee due and payable. Thereafter, for every thirty days or portion thereof that the report or fee remains unfiled or unpaid, the owner and operator shall pay a penalty of an additional five percent on the fee due and payable. The department has the authority to waive the penalty upon a showing of reasonable cause.

Section 13. Any owner or operator who violates any provision of this chapter, or any rule or regulation promulgated hereunder (1) shall be subject to a fine not to exceed twenty-five thousand dollars, or by imprisonment for not more than two years, or both, for each such violation; or (2) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each such violation. Each day each such violation occurs or continues shall be deemed a separated offense. These penalties shall be in addition to any other penalties that may be prescribed by law.

Section 14. The fees, penalties, and interest remitted to the treasurer by the department under this chapter shall be deposited in the treasury to the credit of the fund in accordance with the provisions of section two S of chapter twenty-nine.

SECTION 2. Chapter twenty-nine of the General Laws is hereby amended by inserting the following section:

Section 2S. There shall be established and set up on the books of the commonwealth a separate fund to be known as the Underground Storage Tank Petroleum Product Cleanup Fund. There shall be credited to such fund: any fees, penalties, and other amounts collected pursuant to chapter twenty-one J; any appropriation, grant, gift, or other contribution explicitly made to such fund; and any interest earned on monies within the fund.

Amounts credited to said fund shall be used, subject to appropriation, for the purposes set forth in chapter twenty-one J.

SECTION 3. Section 29 of Chapter 148 of the General Laws, as appearing in the 1988 Official Edition, is hereby amended by inserting after the third sentence the following sentence:- The provisions of this section shall not apply to any rule or order adopted or issued pursuant to sections thirty-eight B through thirty-eight I.

SECTION 4. Section 32 of said Chapter 148, as so appearing, is hereby amended by inserting at the end of the first sentence of the fourth paragraph the following:- , or, if such information is subject to sections thirty-eight B through thirty-eight I, until such information becomes a public record in accordance with section thirty-eight I.

SECTION 5. Chapter 148 of the General Laws is hereby further amended by inserting after section 37 the following section:-

Section 37A. As used in this section, the term "fuel storage tank" shall mean a tank, either underground or aboveground, used or designed to be used for the storage of gasoline, oil, or other fuel, or other flammable liquids, provided that said tank does not have an acceptable form of leak detection and does not have a spill containment manhole and an overfill prevention device.

The Board created by Section eight of Chapter twenty-one J shall establish and administer a program to provide grants to cities, towns, districts, and other bodies politic, and to agencies of the commonwealth, for the purpose of removing or replacing or both, and for the purpose of testing, fuel storage tanks that they own or operate, subject to the following conditions:

(1) No grant shall be awarded for the removal or replacement of any fuel storage tank installed on or after January first, nineteen hundred and eighty-nine.

(2) Except as provided in clause (3) of this section, no grant shall be awarded for the removal or replacement of any fuel storage tank unless the city, town, district, or other body politic, or agency of the commonwealth, that owns or operates the tank files with the Board, within six months after the initial publication in the Massachusetts Register of regulations implementing this section, a statement that either (a) it has removed or replaced said tank on or after January first, nineteen hundred and eighty-nine or intends to and does do so by no later than six months after the initial publication in the Massachusetts Register of regulations implementing this section, or (b) it intends to continue to use said tanks and agrees to do so in compliance with all applicable regulations including, without limitation, regulations of the board of fire prevention regulations, the department of environmental protection, and the United States Environmental Protection Agency.

(3) If, pursuant to clause (2) of this section, a city, town, district, or other body politic, or agency of the commonwealth, files with the board a statement that it intends to continue to use a fuel storage tank and agrees to do so in compliance with all applicable regulations, no grant shall be awarded for the removal or replacement of said tank until at least five years after the filing of said statement with the board. Anytime after the expiration of this five-year period, any city, town, district, or other body politic, or agency of the commonwealth, may become eligible for a grant pursuant to this section by filing with the board a statement that it intends to remove or replace the tank in question within six months of the filing of said statement.

(4) If a city, town, district, or other body politic, or agency of the commonwealth, files with the board any statement provided for in clause (2) of this section with respect to a fuel storage tank that it owns or operates, a city, town, district, or other body politic, or agency of the commonwealth, that owns or operates said tank shall be reimbursed for the expenses of performing those tests of said tank that are required by regulation or order of any agency of the commonwealth or of the United States.

A grant for the removal or replacement of a fuel storage tank shall be made in annual payments for a period not to exceed ten years. The amount of each annual payment shall be either one-tenth of the cost of removing or replacing the fuel storage tank, or the annual expense of testing the fuel storage tank in compliance with all regulations of the commonwealth and the United States applicable to that fuel storage tank, whichever amount is greater.

A grant for reimbursement for the expenses of performing those tests of a fuel storage tank required by regulation or order of any agency of the commonwealth or of the United States shall be made in annual payments equalling said expenses.

All annual payments made to cities and towns pursuant to this section shall be made as part of annual local aid distribution to cities and towns.

Nothing in this section shall be construed to effect the rights, responsibilities, or liability of any person pursuant to any other law.

No person who has responsibility or liability pursuant to any other law shall avoid or delay such responsibility or liability, or be excused from such responsibility or liability, because of reliance on grants provided for in this section or because of any failure or delay to provide grants or grant payments pursuant to this section.

By no later than July 1, 1991, the board shall promulgate regulations for the proper implementation of this section, including, without limitation, regulations for filing grant applications and for filing the statements provided for in this section.

SECTION 6. Said Chapter 148 is further amended by striking section 38 therein and inserting in its place the following new section:-

Section 38. The board shall make rules and regulations governing the construction, use, and maintenance of tanks to which section thirty-seven applies; governing the removal and relocation of tanks to which section thirty-eight A applies; and governing the allocation of grants to cities and towns to which section thirty-seven A applies.

SECTION 7. Said Chapter 148 is hereby further amended by striking section 38A and inserting in place thereof the following section:-

Section 38A. No underground tank which has been used for the keeping or storage of flammable or combustible fluids shall be removed or relocated unless a permit for such removal or relocation has first been obtained from the state fire marshal or the official designated by him to grant permits in the city, town or district where such tank is located. If the permit is issued by an official of a city, the fee for such permit shall be established by action of the city council or board of aldermen in the form of a duly adopted ordinance.

If the permit is issued by an official of a town, the fee for such permit shall be established by action of the town meeting or, if the town has no town meeting, by action of the town council, in either case in the form of a duly adopted bylaw. In no event shall any such ordinance or bylaw establish a fee greater than two hundred dollars nor require payment of such fees by the commonwealth or any of its departments, boards, commissions, authorities, or political subdivisions.

SECTION 8. Said Chapter 148 of the General Laws is hereby further amended by inserting after section thirty-eight A the following sections:-

Section 38B. As used in sections thirty-eight C through thirty-eight I, the following terms shall have the following meanings:

"CERCLA", the Comprehensive Environmental Response Compensation and Liability Act of nineteen hundred and eighty, 12 U.S.C. section 9601 et seq., as may be amended from time to time.

"Department", the department of public safety.

"Board", Massachusetts Board of Fire Prevention Regulations.

"Guarantor", any person, other than a person liable pursuant to section five of chapter twenty-one E, who provides evidence of financial responsibility pursuant to this chapter.

"Regulated Substance", (a) any substance defined in section 101(4) of the Comprehensive Environmental Response Compensation and Liability Act of nineteen hundred and eighty, including waste oil but not including any other substance regulated as a hazardous waste under chapter twenty-one C, and (b) petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit and 14.7 pounds per square inch absolute).

"Operator", (1) in the case of an underground storage tank in use on November eighth, nineteen hundred and eighty-four, or brought into use after that date, any person in control of, or having responsibility for, the daily operation of an underground storage tank used for the storage, use, or dispensing of regulated substances or (2) in the case of any underground storage tank in use before November eighth, nineteen hundred and eighty-four, but not in use at any time on or after that date, any person who owns the land on or in which such tank is or was located.

"Owner", (1) in the case of an underground storage tank in use on November eighth, nineteen hundred and eighty-four, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of regulated substances or (2) in the case of any underground storage tank in use before November eighth, nineteen hundred and eighty-four, but not in use at any time on or after that date, any person who owned such tank immediately before the discontinuance of such use.

"Person", any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, the United States Government, state, municipality, commission, political subdivision of a state, interstate body, consortium, joint venture, commercial entity.

"RCRA", the Solid Waste Disposal Act, as revised by the Resource Conservation and Recovery Act, as may be further amended from time to time.

"Release", any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank into the ground water, surface water or subsurface soil.

"Marshal", the state fire marshal.

"Head of Fire Department" the chief executive officer of the fire department in a city, town or fire district having such an office otherwise the fire commissioner, board of fire commissioners or fire engineers, or commissioner of public safety; and, in towns not having a fire department the chief engineer, if any, otherwise the chairman of the board of selectmen.

"Trade Secret", anything tangible which constitutes, represents, evidences, or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention, or improvement.

"Underground storage tank", any one or combination of tanks, including, without limitation, underground pipes connected thereto, used to contain an accumulation of regulated substance and the volume of which, including the volume of underground pipes connected thereto, is ten percent or more beneath the surface of the ground. The term shall not include any of the following or any pipes connected to any of the following: (1) any septic tank; or (2) any pipeline facility, including gathering lines, which is regulated under (a) the Natural Gas Pipeline Safety Act of nineteen hundred and sixty-eight; or (b) the Hazardous Liquid Pipeline Safety Act of nineteen hundred and seventy-nine; or (3) any surface impoundment pit, pond, or lagoon; or (4) any storm water or waste water collection system; or (5) any flow through process tank; or (6) any liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or (7) any storage tank situated in an underground area, including without limitation, a basement, cellar, or mineworking driff, shaft or tunnel, if the storage tank is situated upon or above the surface of the floor, and all sides are accessible and visible.

Section 38C. Nothing in sections thirty-seven, thirty-seven A, sections thirty-eight A through thirty-eight I, or any other provision of this chapter shall be construed to limit the authority that the department, the head of a fire department, any other department or agency of the Commonwealth, or a city, town, district, or other body politic has pursuant to any law.

(1) Each owner of an underground tank first put into operation on or after January first, nineteen hundred and ninety-one shall, within thirty days after the tank is first put into operation, notify the department of the existence of such tank, specifying the age, size, type, location, and uses of such tank. The requirements of this subsection (1) shall not apply to any underground storage tank that is (a) a farm or residential tank of 1.100 gallons or less capacity used for storing motor fuel for noncommercial purposes, or (b) a tank used for storing heating oil for consumptive purposes where stored. In prescribing the form of such notice, the department shall take into account the form of the notice prescribed pursuant to section 9002 of RCRA and the effect on small businesses and other owners and operators.

(2) The requirements of this subsection (2) shall not apply to any underground storage tank that is (a) a farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes, or (b) a tank used for storing heating oil for consumptive use on the premises where stored. By no later than January thirty-first, nineteen hundred and ninety-one, each owner of an underground storage tank that was in operation at any time after January first, nineteen hundred and seventy-four and before January first, nineteen hundred and ninety-one, regardless of whether or not such tank was removed from beneath the surface of the ground at any time, shall notify the department of the existence of such tank, specifying, to the extent known to the owner, the size, type, and location of the tank, and the quantity of substances stored in such tank before the tank ceased being in operation if the tank was removed from beneath the surface of the ground, prior to the submittal of such notice to the department, such notice shall also specify, to the extent known to the owner, the date the tank was removed from beneath the surface of the ground, prior to the submittal of such notice to the department. In prescribing the form of such notice, the department shall take into account the form of the notice prescribed pursuant to section 9002 of RCRA and the effect on small businesses and other owners and operators.

(3) The requirements of this subsection (3) shall not apply to any underground storage tank that is (a) a farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes, or (b) a tank used for storing heating oil for consumptive use on the premises where stored. By no later than December thirty-first, nineteen hundred and ninety-one, each owner of an underground storage tank that was not in operation at any time after January first, nineteen hundred and seventy-four and that was not removed from beneath the surface of the ground on or before January first, nineteen hundred and seventy-four, or the operator of any such tank that has no owner or whose owner cannot be definitely ascertained, shall notify the department of the existence of such tank, specifying, to the extent known to the owner, the size, type, and location of the tank, and the type and quantity of substance stored in such tank before the tank ceased being in operation if the tank was removed from beneath the surface of the ground. If the tank was not removed from beneath the surface of the ground prior to the submittal of such notice to the department such notice shall also specify, to the extent known to the owner or operator, the date the tank was removed from beneath the surface of the ground and age of the tank and all methods used to stabilize the tank after the tank ceased being in operation. In prescribing the form of the notice, the department shall take into account the form of the notice prescribed pursuant to section 9002 of RCRA and the effect on small businesses and other owner and operators.

Section 38D. The department shall enforce the provisions of sections thirty-eight B through thirty-eight I, and may, subject to the provisions in sections thirty-eight B through thirty-eight I, take all action necessary and appropriate to secure to the commonwealth the benefits of subtitle I of RCRA, including without limitation, obtaining federal grants. The board may, from time to time, adopt, amend, or repeal regulations as it deems necessary to accomplish the following purposes: (1) prevent or remedy any condition in or about any underground storage tank which may tend to become a fire hazard or to cause a fire: or (2) which provide adequate safety requirements for the protection of the public in the event of a fire in or about any underground storage tank; or (3) provide for the safe storage, use, handling and manufacturing of regulated substance in or about any underground storage tank; or (4) protect public health, safety, and welfare, and the environment, from any release of a regulated substance from any underground storage tank; or (5) implement, administer, and enforce sections thirty-eight B through thirty-eight I.

Section 38E. The board may, from time to time, adopt, amend, or repeal regulations as it deems necessary to establish the following requirements and standards for underground storage tanks:

(1) requirements for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with protection of human health and the environment;

(2) requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing system;

(3) requirements for reporting of any releases and corrective action taken in response to a release from an underground tank;

(4) requirements for taking corrective action in response to a release from an underground storage tank; provided, that such requirements shall be consistent with and not duplicative of the Massachusetts Contingency Plan pursuant to chapter twenty-one E;

(5) requirements for the closure of tanks to prevent future releases of regulated substance into the environment;

(6) requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental release arising from operating an underground storage tank;

(7) standards of performance for new underground storage tanks; and

(8) requirements (a) for notifying the department and the head of the fire department designated according to section 9002- (b) (1) of the existence of any operational or nonoperational underground storage tank: and (b) for providing the information required on the form issued pursuant to section 9002 (b) (2).

Section 38F. For any of the purposes set forth in section thirty-eight D, and for the purposes of developing or assisting in the development of any regulation pursuant to sections thirty-eight B through thirty-eight I, or conducting any study mandated by Congress or by the General Court, any owner or operator of an underground storage tank shall upon request of the marshal, the head of the fire department, and their personnel or authorized agents, furnish information relating to such tanks, their associated equipment and their contents, conduct monitoring or testing, and permit the marshal, the head of the fire department, and their personnel or authorized agents, to have access to, and to copy all records relating to, such tanks. For any of the purposes set forth in section thirty-eight D, and for the purposes of developing or assisting in the development of any regulation pursuant to sections thirty-eight B through thirty-eight I, or conducting any study mandated by Congress or by the General Court, the marshal, the head of the fire department, and their personnel or authorized agents, are authorized (1) to enter at reasonable times any establishment or other place where an underground storage tank is located; and (2) to inspect and obtain samples from any person of any regulated substance contained in such tank; and (3) to conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water or ground water. Each such inspection shall be commenced and completed with reasonable promptness.

Section 38G. Whenever it appears that there is a violation of any provision of sections thirty-eight B through thirty-eight I or any regulation or order adopted or issued pursuant to section thirty-eight B through thirty-eight I, the marshal or head of the fire department may issue to a person causing or contributing, or likely to cause or contribute, to such violation or potential violation an order requiring the production or analysis of samples, or the production of records, or imposing such restraints on or requiring such action by said person, as the marshal or the head of the fire department reasonably deems necessary or desirable to abate to prevent such violation or potential violation. Issuance of an order under this section shall not preclude, and shall not be deemed an election to forego, any other remedy authorized by law.

Section 38H. No person shall violate, or allow or suffer any employee, agent, or contractor to violate, any provision of sections thirty-eight B to thirty-eight I, or of any regulation or order adopted or issued pursuant to sections thirty-eight B through thirty-eight I. Any violation of sections thirty-eight B through thirty-eight I, shall be presumed to constitute irreparable harm to public health, safety and welfare, and to the environment. Such presumption may be rebutted by the introduction of competent evidence. Any person who violates any provisions of sections thirty-eight B through thirty-eight I, or any regulation, rule, order, permit or approval issued or adopted under the provisions of section thirty-eight B through thirty-eight I inclusive, (a) shall be punished by a fine not to exceed twenty-five thousand dollars, or by imprisonment for not more than two years, or both; or (b) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each such violation. Each day each such violation occurs or continues shall be deemed a separate offense. This shall be in addition to any other penalty or remedy prescribed by law.

The superior court department of the trial court shall have jurisdiction to assess civil penalties as set forth in this section, and to enjoin violations of, and grant such additional relief as it deems necessary or appropriate to secure compliance with, the provisions of sections thirty-eight B through thirty-eight I, or any regulation or order adopted or issued pursuant to sections thirty-eight B through thirty-eight I, inclusive, upon petition of the attorney general, a district attorney, the department, the marshal, the head of the fire department, or a city or town.

Section 38I. Notwithstanding the provisions of any general or special law to the contrary, any information, record, or particular part thereof, obtained by the department or by the head of the fire department or by their respective personnel or contractors pursuant to the provisions of sections thirty-eight B through thirty-eight I, upon request, shall be confidential and not be considered to be a public record when it is determined by the marshal or by the head of the fire department, as the case may be, that such information, record, or particular part thereof, if made public, would divulge a trade secret. This section shall not prevent disclosure of any information necessary for an enforcement action or to comply with Federal law or regulations. The exclusive remedy for any person aggrieved by a determination of the marshal or of the head of the fire department, as the case may be, pursuant to this section shall be a civil action in the nature of certiorari pursuant to section four of chapter two hundred and forty-nine; provided, that the action shall be commenced within thirty days of the date of the determination. Notwithstanding the provisions of any general or special law to the contrary, any information, record, or particular part thereof, obtained by the department, or by the head of the fire department or by their respective personnel or contractors pursuant to the provisions of sections thirty-eight B through thirty-eight I shall be a public record unless it is not a public record pursuant to this section or pursuant to any other law.

SECTION 9. The department of environmental protection in conjunction with the Underground Storage Tank Petroleum Product Cleanup Fund Administration Review Board shall perform a study of alternative ways to fund the services performed by said department in response to releases and threats of releases of petroleum products from leaking underground storage tanks pursuant to chapter twenty-one E. The study shall examine currently authorized funding sources and appropriations for the program, ways to improve the program's efficiency, and current and alternative program designs to properly remediate releases and threats of releases from such tanks. The study shall develop recommendations to fund the difference between future revenues from existing sources and projected expenses. The study shall also address any program and statutory modifications needed to ensure that petroleum product releases and threats of release from underground storage tanks are assessed and cleaned up as quickly and efficiently as possible by both public and private responders. Said department and said board shall perform the study in consultation with representatives of petroleum producers, suppliers, and marketers, industrial, small business, and other commercial organizations, financial institutions, municipalities, and environmental organizations. The commissioner of the department of environmental protection shall submit to the house and senate committees on ways and means and the joint committee on natural resources and agriculture by April first, nineteen hundred ninety-one, a copy of the study and any accompanying legislation which would be necessary to implement said study's recommendation.

SECTION 10. All rules, regulations, orders, licenses, permits, certificates, and approvals duly issued, made or adopted with respect to tanks, and which are in force on the effective date of this act, shall continue to be in force and effect and shall be enforceable until they expire or until suspended, revised, rescinded or otherwise modified in accordance with the provisions of this act or of any other law.

SECTION 11. Any suit, action, cause of action, or other procedure lawfully commenced or arising prior to the effective date of this act shall not abate or be rendered unenforceable by reason of the passage of this act.

SECTION 12. The underground storage tank petroleum product cleanup fund administrative review board, established by section eight of chapter twenty-one J of the General Laws, inserted by section one of this act, is hereby authorized and directed to submit a report on the following subjects, including recommendations and proposed legislation necessary to effectuate them, to the Governor, the Clerk of the Senate, the Clerk of the House of Representatives, the Senate and House Committees on Ways and Means, and the Joint Committee on Natural Resources and Agriculture by no later than October 1, 1991:

(1) ways to prevent and deter the submission and approval of claims for such reimbursements that are fraudulent, inflated, or not at reasonable levels; and

(2) ways to assure and, if necessary, improve the adequacy and reliability of the funding provided for such reimbursements and for the grants provided for in said chapter twenty-one J.