§ 3A — Timetables and specifications for action at disposal sites

Massachusetts § 3A

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title II: EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
• Ch. 21E: MASSACHUSETTS OIL AND HAZARDOUS MATERIAL RELEASE PREVENTION AND RESPONSE ACT

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Section 3A. 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 fifteenth, nineteen hundred and eighty-seven, 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, the department shall maintain such list and shall update and publish it on at least a quarterly basis through January fifteenth, nineteen hundred and ninety. Effective after January fifteenth, nineteen hundred and ninety-three, the department shall maintain, and shall publish on at least an annual basis, a list of all sites confirmed by the department to the date of publication, and a list of other sites as provided in this section. Such lists shall state the response action status of each location confirmed as a disposal site or as a site. The department may hold confidential any information regarding any location if the department determines that public disclosure might interfere with enforcement action by the department or the attorney general. For purposes of implementing this subsection, a "location to be investigated'' shall mean a location that, based upon the uses of the property, the conditions reported, or other information the department has, is reasonably likely to be a disposal site.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 fifteen, nineteen hundred and eighty-nine, at least one thousand additional locations beyond those listed in the previous year;(4) by January fifteen, nineteen hundred and ninety, at least one thousand additional locations; and(5) by January fifteen, nineteen hundred and ninety-three, and at least once each year thereafter, all additional sites of which the department has knowledge, except that the department shall not be required to list a site where there occurred a release of oil or hazardous material for which sufficient response actions were taken, or for which no response actions were necessary, such that including the site on a list published pursuant to this section is not necessary to carry out the purposes of this section; provided, that the department has in effect regulations setting forth the criteria the department shall use in determining which sites need not be included on said list to carry out the purposes of this chapter, which regulations shall be promulgated as expeditiously as is feasible.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) The department shall continuously carry out a comprehensive program to identify sites in the commonwealth, with particular emphasis on sites that pose a substantial hazard. Such program shall ensure that sufficient sites are discovered to enable the department to meet the requirements of subsection (p). By January first, nineteen hundred and ninety-four, the department shall publish a three-year plan which establishes a schedule of site discovery activities to identify, at a minimum, significant threats to public water supplies. No later than January first, nineteen hundred and ninety-seven, the department shall identify and list, pursuant to subsection (b), sites which pose a significant threat to public water supplies. The absence of a site from any such list shall not constitute a finding that the site does not pose a substantial hazard to health, safety, public welfare or the environment.(d) In the Massachusetts Contingency Plan, the department shall establish standards, procedures and deadlines, all of which shall be established in such terms that they can be legally enforced pursuant to this chapter or any other applicable law, to ensure that response actions are taken in compliance with this chapter and the Massachusetts Contingency Plan as expeditiously as practicable.(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 site, unless, pursuant to subsection (g), the department finds that a level of no significant risk already exists or that permanent solutions are feasible and that immediate implementation of such solutions would be more cost-effective than phased implementation of temporary and permanent solutions, one or more temporary solutions shall be implemented to the extent feasible. Such solutions shall eliminate any substantial hazard to health, safety, public welfare, or the environment which is presented by the site or by any oil or hazardous materials at or 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. Such solutions shall be carried out in accordance with this chapter and in accordance with standards, procedures, and deadlines established pursuant to subsection (d). Permanent solutions as required pursuant to subsection (g) shall be required if the department finds that a level of no significant risk does not yet exist, that permanent solutions are feasible, and that immediate implementation of such solutions would be more cost-effective than phased implementation of temporary and permanent solutions.To the maximum extent consistent with this chapter, the department shall establish standards, which shall be established in such terms that they can be legally enforced pursuant to this chapter or any other applicable law, for determining what is a temporary solution at one or more types of sites.(g) At each site, one or more permanent solutions to the extent feasible shall be implemented as necessary to achieve a level of no significant risk. No site shall be deemed to have had all the necessary and required response actions taken for such site unless and until a level of no significant risk exists or has been achieved in compliance with this chapter.For each site, either a report shall be submitted demonstrating that a level of no significant risk exists or has already been achieved at the site, or else a plan shall be established that shall include a timetable of definitive and enterprising steps to be taken to identify, develop and implement a permanent feasible solution at the site, and that, for each step included in the plan, shall specify who shall take that step. Where permanent solutions are not yet feasible, the plan shall specify steps 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 at the site remain effective until a permanent solution is effectuated. Such plans shall be established and carried out in accordance with this chapter and in accordance with standards, procedures, and deadlines established pursuant to subsection (d).For purposes of this chapter, a "permanent solution'' shall mean a measure or combination of measures that, at a minimum, shall ensure the attainment of "no significant risk.'' For purposes of this chapter, "no significant risk'' shall mean a level of control of each identified substance of concern at a site or in the surrounding environment such that no such substance of concern shall present a significant risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time. In determining whether a permanent solution will achieve a level of no significant risk, the department shall consider existing public health or environmental standards where applicable or suitably analogous, and any current or reasonably foreseeable uses of the 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, a permanent solution shall include a measure or 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 site of concern.By no later than January first, nineteen hundred and ninety-four, the department shall promulgate in accordance with section two of chapter thirty A, and shall submit to the state secretary for publication in the Massachusetts Register in accordance with sections five and six of chapter thirty A, standards for determining when there exists a level of no significant risk. By no later than July first, nineteen hundred and ninety-three, the department shall submit to the state secretary for publication in the Massachusetts Register, and the state secretary shall publish in the Massachusetts Register, in accordance with sections five and six of chapter thirty A, the notice required by section two of chapter thirty A and a draft of the standards described in the preceding sentence. After the initial promulgation of standards required by this subsection, the department may amend or repeal them, or adopt additional ones, in accordance with all applicable requirements of chapter thirty A.(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) The department shall have in effect the following: (1) 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 permanent solutions pursuant to subsection (g). Such programs shall be designed to help ensure that permanent solutions as described in subsection (g) are achievable as quickly as possible.(2) 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 subsection (a) of section five 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 may establish and implement intermediate deadlines for each disposal site, including but not limited to, deadlines for compliance with orders and termination of settlement discussions to ensure action consistent with deadlines established pursuant to subsection (d). Without limiting the generality of the foregoing:(1) As part of such incentives or negotiations, the commonwealth may, in its sole discretion, enter into a covenant not to sue concerning some or all of any liability to the commonwealth pursuant to this chapter, including future liability; provided, that each covenant not to sue shall be in the public interest.(2) A person who has resolved his liability to the commonwealth in an administrative or judicially approved settlement shall not be liable for claims for contribution, cost recovery or equitable share regarding matters addressed in the settlement to any person (i) to whom the settling party has provided notice of the settlement, or who has otherwise received notice, and (ii) who has had an opportunity to comment on the settlement to the settling parties. Matters addressed in a settlement shall be defined in each settlement. An opportunity to comment shall mean an opportunity for a person to submit written comments to the settling parties during a period of 90 calendar days commencing with such person's receipt of notice or the date of publication of notice. The settling governmental entity may, in its sole discretion, extend the 90-day comment period upon a request made prior to the expiration of such comment period. Notice shall include, but shall not be limited to, notice of how, when and to whom to make comments. Notice means actual notice or notice provided by registered mail, return receipt, to all owners of record in the respective registry of deeds or the appropriate land registration office of the registry district for the preceding 50 years for all property within the site, and all parties who have received notice from the department of environmental protection pursuant to section 4. For all others notice means notice by publication. Notice by publication shall be deemed adequate upon publication of the settlement (i) in theEnvironmental Monitorand (ii) in a newspaper, if any, published in the municipality where the site is located or in a newspaper with general circulation in the town where the site is located, once in each of three successive weeks. If no newspaper is published in such municipality, notice may be published in a newspaper with general circulation where the site is located. A newspaper which by its title page purports to be printed or published in such municipality, and having a circulation therein, shall be sufficient for the purpose of providing notice by publication pursuant to this section. No such settlement shall be effective prior to the closing of the comment period. Such settlement does not discharge any other person unless its terms so provide, but shall reduce the potential liability of all other liable persons by the amount of the settlement.(3) Pursuant to the limitations set forth in this subsection, the commonwealth may, in its sole discretion, enter into a brownfields covenant not to sue agreement with a current or prospective owner or operator of property that is contaminated by oil or hazardous material.(a) The commonwealth may enter into such an agreement only where:(i) the proposed redevelopment or reuse of the property will contribute to the economic or physical revitalization of the community in which it is located, and thereby provides the following public benefits, including, but not limited to redevelopment that: (a) provides new, permanent jobs, or (b) results in affordable housing benefits, or (c) provides historic preservation, or (d) creates or revitalizes open space, or (e) will provide some other public benefit to the community as determined by the attorney general; and.(ii) a permanent solution or remedy operation status shall be achieved and maintained for the site that is the subject of the covenant, in accordance with this chapter and regulations promulgated pursuant thereto; or, if the person to whom such covenant is provided is an eligible person as defined in section 2, and such person can demonstrate that it is not feasible to achieve a permanent solution for the site in accordance with paragraph (g) of this section, that a temporary solution is achieved and maintained in accordance with paragraph (f) of this section; and(iii) a development plan describing the proposed use or reuse of the site and the proposed public benefits is submitted in accordance with the regulations promulgated pursuant to this section.(b) In entering into such covenants not to sue, the commonwealth shall give first priority to sites located in the 15 cities with the highest poverty rate in the commonwealth; second priority to sites located in the remaining municipalities located within an economically distressed area as defined in section 2 of this chapter; and third priority to sites located in any remaining municipalities in the commonwealth.(c) A person who has entered into a brownfields covenant not to sue agreement shall not be liable to the commonwealth or to any other person who has received notice of an opportunity to join the covenant not to sue agreement, for claims for contribution, response action costs or for property damage pursuant to this chapter or for property damage under the common law, except for liability arising under a contract; provided, however, that no person shall be relieved of any liability by this provision with respect to any matter or property that is not addressed by said brownfields covenant not to sue agreement.(d) Nothing in this clause shall relieve a potentially liable person of any liability for a release or threat of release of oil or hazardous material: (i) that first begins to occur after the brownfields covenant not to sue vests; (ii) from which there is a new exposure that results from any action or failure to act pursuant to this chapter during such person's ownership or operation of the site; or (iii) that violates or is inconsistent with an activity and use limitation established pursuant to this chapter and regulations promulgated thereunder.[ Subparagraph (e) of paragraph (3) of subsection (j) effective until May 30, 2023. For text effective May 30, 2023, see below.](e) The attorney general shall, in consultation with the department of environmental protection and the department of economic development, within one year of the effective date of this act, adopt regulations to carry out the purposes of this subsection.[ Subparagraph (e) of paragraph (3) of subsection (j) as amended by 2023, 7, Sec. 55 effective May 30, 2023. See 2023, 7, Sec. 298. For text effective until May 30, 2023, see above.](e) The attorney general shall, in consultation with the department of environmental protection and the department of economic development, within one year of the effective date of this act, adopt regulations to carry out the purposes of this subsection, and shall consult with the department of environmental protection and the executive office of economic development on any subsequent amendments to said regulations.(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.[ There is no subsection (l).](m) Subject to the requirements of this chapter and of chapter thirty A, the department shall revise the Massachusetts Contingency Plan to conform to the requirements of this chapter. To the maximum extent consistent with this chapter, said plan shall include simple, standardized methods or criteria for evaluating the degree of hazard present at a site including, but not limited to, whether a site is an imminent or substantial hazard, and the feasibility and effectiveness of response actions intended or considered pursuant to subsections (f) or (g). Such methods and criteria may comport with and complement the methods and criteria of the National Contingency Plan prepared pursuant to federal law, and shall be protective of health, safety, public welfare, and the 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.(o) The department shall audit a sufficient number of response actions not overseen or conducted by the department to ensure that response actions not overseen or conducted by the department are performed in compliance with the provisions of this chapter and the Massachusetts Contingency Plan. In each year the department shall, at a minimum, audit a statistically significant number, as determined by the department, of all sites for which annual compliance assurance fees are required to be paid under section 3B. In determining the statistically significant number, the department shall take into account the need for audits to ensure a high level of compliance with this chapter and the Massachusetts Contingency Plan and the need to target audit resources in the most efficient and effective manner. The department may establish additional audit targets for categories of persons or response actions or sites, as defined pursuant to subsection (d) of section three, based on the level of department oversight provided to each category.(p) The highest priority of the department under this chapter shall be to ensure response actions and temporary and permanent solutions at those sites which pose the greatest risk to public health, safety, welfare, and the environment. To this end, the department shall address the sites of greatest concern according to the following minimum procedure and timetables:(1) In each year, for at least one hundred sites which are among those posing the greatest risk to public health, safety, welfare, or the environment, the department shall ensure that a combination of the following occur:(i) a permit has been issued; or (ii) the department has issued an order pursuant to clause (B) of paragraph (1) of subsection (b) of section 10 for a person to carry out response actions or to apply for a permit to carry out response actions or both; or (iii) the department has taken or arranged for such response actions as it reasonably deems necessary.(2) In each year, the department shall, through the approval of a permit, the issuance of an order, or the taking or arranging for a response action by the department, identify one hundred sites, which are among those posing the greatest risk to public health, safety, welfare, or the environment, at which the department shall, at a minimum, ensure that within five years of the approval of a permit, the issuance of an order, or the department arranging for or taking response actions, whichever is applicable, temporary solutions are implemented to the extent feasible prior to the implementation of permanent solutions. The department shall ensure that permanent solutions are implemented within five years if the department finds that such permanent solutions are feasible and would be more cost-effective than phased implementation of temporary and permanent solutions.Nothing in this section shall be construed to limit the authority and responsibility of the department to ensure that short-term and interim measures, response actions, and temporary and permanent solutions are undertaken in a timely manner at all sites which pose a significant risk to public health, safety, welfare, or the environment.