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The 193rd General Court of the Commonwealth of Massachusetts
  1. General Laws
  2. Part I ADMINISTRATION OF THE GOVERNMENT
  3. Title II EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
  4. Chapter 21E MASSACHUSETTS OIL AND HAZARDOUS MATERIAL RELEASE PREVENTION AND RESPONSE ACT
  5. Section 5C Exemption from liability for release of oil or hazardous material at a site for which a permanent solution or remedy operation status exists

Section 5C

Section 5C: Exemption from liability for release of oil or hazardous material at a site for which a permanent solution or remedy operation status exists

Section 5C. (a) An eligible person shall be exempt from liability to the commonwealth or to any other person for contribution, response action costs or property damage pursuant to this chapter or for property damage under the common law, except for liability arising under a contract, for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion, provided that all of the requirements of this section are met. This exemption shall only apply if such opinion meets the standard of care as defined in section 2.

(b) The liability exemption provided by this section shall only apply where:

(1) the eligible person owns or operates a site or portion of a site at or from which there has been a release of oil or hazardous material that has affected only soil, and has not affected groundwater or surface water, and achieves and maintains a permanent solution or remedy operation status for the release on the property owned or operated by such eligible person;

(2) the eligible person owns or operates a site or portion of a site which is the source of a release of oil or hazardous material to groundwater or surface water and achieves and maintains a permanent solution or remedy operation status for the entire site; or

(3) the eligible person who meets the requirements of section 5D shall be eligible for the liability exemption in paragraph (a) of this section if he otherwise satisfies clause (1) of paragraph (b) of this section.

(c) To qualify for the liability exemption provided by this section, an eligible person shall:

(1) comply with the notice requirements of this chapter and regulations promulgated thereto, as applicable;

(2) provide reasonable access to the portion of the site owned or operated by such eligible person to employees, agents, and contractors of the department for all purposes authorized by this chapter and to other persons intending to conduct response actions pursuant to this chapter and regulations promulgated thereto;

(3) respond in a reasonably timely manner to any request made by the department or the attorney general to produce information as required pursuant to this chapter;

(4) ensure that response actions at the site or portion of the site owned or operated by the eligible person are conducted in accordance with this chapter and regulations promulgated thereto;

(5) ensure that response at or from the site or portion of the site owned or operated by the eligible person meet the standards of care as defined in section 2; and

(6) settle response action costs that are incurred by the commonwealth and for which such eligible person is potentially liable pursuant to this chapter. The settlement of such costs shall be negotiated between the commonwealth and such eligible person. The commonwealth is directed to consider the future economic benefits such as future job gains and the economic revitalization of the community in the negotiation of an appropriate settlement of costs incurred by the commonwealth. The commonwealth shall also consider the ability of the eligible person to pay such response action costs in the negotiation of an appropriate settlement.

(d) An eligible person who is in full compliance with this chapter and the regulations promulgated hereunder and subsequently transfers ownership or operation of the site or portion of the site under his control to another eligible person before achieving a permanent solution or remedy operations status shall, at such time as a subsequent owner or operator achieves a permanent solution or remedy operations status at the site or portion thereof, be exempt from liability as set forth in paragraph (a), provided the eligible person conducts all response actions pursuant to this chapter and regulations promulgated thereto, and otherwise complies with the provisions of paragraphs (b) and (c) during the period of time when such eligible person owns or controls the site or portion of the site.

(e) An eligible person who first owns or operates its portion of a site after a permanent solution or remedy operation status has been achieved and maintained shall be exempt from liability as set forth in paragraph (a); provided, however, that such person satisfies subparagraphs (1) to (3), inclusive, of paragraph (c) and (2) maintains the permanent solution or remedy operation status.

(f) Where a liability exemption pursuant to this section is obtained for a release of oil, the person who owned or operated the site immediately prior to the eligible person shall be liable except that such person may assert the defense pursuant to clause (3) of paragraph (c) or paragraph (h) of section 5, if applicable.

(g) Nothing in this section shall prohibit an eligible person from voluntarily conducting response actions in addition to those required to achieve and to maintain the liability exemption pursuant to this section.

(h) Nothing in this section shall relieve an eligible person of liability for a release or threat of release of oil or hazardous material that first begins to occur at or from the site or portion of the site under his control during such person's ownership or operation.

(i) Nothing in this section shall relieve an eligible person of any liability for a release or threat of release of oil or hazardous material:

(1) that is exacerbated, caused, or contributed to by the acts or failure to act pursuant to this chapter of such person or its agent or employee; or

(2) to which there is a new exposure resulting from any action or failure to act pursuant to this chapter during such person's ownership or operation of the site that violates or is inconsistent with an activity and use limitation.

(j) Nothing in this section shall relieve an eligible person of any liability for any action or failure to act that violates or is inconsistent with an activity and use limitation.

(k) A person asserting that it is an eligible person with respect to a release who owns or operates its portion of a site prior to the date on which the release is reported to the department shall bear the burden of proving by a preponderance of the evidence that it is an eligible person pursuant to this section.