Section 6: Department requirements for prevention and control of releases; restrictions on property; notice; liability
Section 6. The department may specify reasonable requirements, applicable to sites and vessels where releases of hazardous material or oil might occur and to activities which might cause, contribute to, or exacerbate a release of hazardous material or oil, to prevent and control, and to counter the effects of, such releases. Such requirements may be prescribed by regulations adopted under section three for classes of sites and vessels which the department reasonably has determined to pose a threat of release of hazardous material or oil, and by order under section nine for specific sites and vessels which the department has determined to have a record of releases, or to have failed to respond properly to a release or threat of release of hazardous material or oil, or to be conducting an activity which poses a threat of release of hazardous material or oil. Such requirements may include, without limitation, but without duplication of requirements prescribed in other programs of the department, the preparation of contingency plans, the acquisition, construction, maintenance and operation of equipment, facilities and resources for the monitoring, prevention and control of releases, and the staffing and training of personnel regarding the prevention and control of releases of hazardous material or oil.
If necessary to carry out the purposes of this chapter, the department may acquire real property, or any interest therein, by purchase, gift or lease, or by eminent domain under the provisions of chapter seventy-nine.
If necessary to carry out the purposes of this chapter, the department may restrict the use of property that is or was a site or vessel, and may modify or release such restrictions. Such restrictions may be in perpetuity or for a specified number of years. No restriction held by the department shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of the benefit being assignable or being assigned to any other governmental body, provided that such restrictions or assignments are approved by the commissioner of the department.
The department may itself record, or may cause, allow or require the owner of the property to record, notice of the restrictions of the use of such property or of the modification or release of such restrictions. If the property to be restricted is real property, such notice of restriction shall be effective when duly recorded and indexed in the grantor index in the registry of deeds or registered in the registry district of the land court for the county or district wherein the land lies so as to affect its title, and describes the land by metes and bounds or by reference to a recorded or registered plan showing its boundaries. If the property is personal property, whether tangible or intangible, such notice shall be recorded in accordance with article 9 of chapter 106 as if the debtor were located in the commonwealth under said section 9-307 of said chapter 106. Any such restriction, modification or release shall be sufficient if executed or approved by the commissioner of the department.
Any owner or operator of real property at which a permanent solution or remedy operation status has been achieved and maintained and an activity and use limitation has been implemented shall not be liable to the commonwealth or to any other person for contribution, response action costs for property damage pursuant to this chapter or for property damage under the common law, which arise after the term of such owner or operator's ownership or possession, and which arise from acts or a failure to act, pursuant to this chapter, of a subsequent property owner, an operator under a subsequent property owner, or another person, which violate or are inconsistent with the terms of such activity and use limitation, provided that:
(a) during its term of ownership or operation of the property, the former property owner or operator complied with the terms of the activity and use limitation and the provisions of this chapter and regulations promulgated pursuant thereto; and
(b) the former property owner or operator did not cause or contribute to any act or failure to act pursuant to this chapter of the subsequent property owner or operator, or other person, which violated or was inconsistent with the terms of the activity and use limitation.
Notwithstanding any other provisions of this section, an owner or operator of real property at which a permanent solution or remedy operation status has been achieved and maintained and an activity and use limitation has been implemented shall be relieved of liability under this section to any person other than the commonwealth, only if
(i) said owner or operator is not subject to an outstanding administrative or judicial enforcement action under this chapter for a release of oil or hazardous materials at the time of the transfer of the subject property, and (ii) said owner or operator records notice of the restrictions of the use of said property pursuant to section 6 of this chapter, and any regulations promulgated hereunder.